T 
I89Z- 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


BOOKSTORE 

BATON  ROUGE 
LA. 


From 
.JACKSON 

iW  BOOKS 

nberlon  Square 


BY  THE  SAME  AUTHOR. 


A  TREATISE  ON  SUSPENSION  OF  THE  POWER  OF  ALIENATION,  AND 
POSTPONEMENT  OF  VESTING,  UNDER  THE  LAWS  OF  NEW  YORK, 
MICHIGAN,  MINNESOTA,  AND  WISCONSIN. 

In  One  Octavo  Volume.     Price  $4.50. 


For  sale  by  all  Law  Booksellers.     Sent,  express  prepaid, 
on  receipt  of  the  price  by  the  publishers, 


BAKER,   VOORHIS   &   CO.,    New  York. 


PRINCIPLES 


OF    THE 


LAW    OF    WILLS 


WITH    SELECTED    CASES. 


BY 

STEWART   CHAPLIN, 

hi 

Professor  of  Law  in  the  Metropolis  Law  School,  New  York,  and  Author  of 
"  Chaplin  on  Suspension  of  the  Power  of  Alienation." 


NEW    YORK: 
BAKER,    VOOKIIIS    &    COMPANY. 

1X92. 


Copyright,  1892,  by 
STEWART    CHAPLIN. 

T 


PREFACE. 


This  book  is  composed  in  part  of  text,  devoted  to  stating  and 
explaining  the  principles  and  the  important  features  of  the  law 
of  wills ;  and  in  part  of  selected  cases  in  which  the  facts  illus- 
trate and  the  opinions  expound  and  apply  that  law.     The  mam 
purpose  in  preparing  it    has  been  to  furnish  a   book   specially 
adapted  to  the  needs  of  law  students.     All  statement  and  discus- 
sion, therefore,  of  such  details  as  do  not  assist  in  a  thorough  and 
accurate  comprehension  of  the  scope  and  principles  of  the  sub- 
ject, have  been  excluded.     But  abundant  citations  in  the  notes, 
of   decided   cases— carefully  selected  from    the   whole   range  of 
English  and  American  decisions— not  only  furnish  authority  for  the 
etatementa  in  the  text,  but  direct  attention  to  the  best  material  for 
wider  reading  and  study.     Within  this  range,  no  pains  have  been 
spared   in   the  effort  to  render  the  text  complete,  accurate,  and 
dear. 

As  for  the  selected  cases,  they  have  been  chosen  solely  with 
reference  to  their  intrinsic  value  for  the  present  purpose,  withoul 
regard  to  locality  of  jurisdiction,  or  date.  Some  of  them  are 
English  ami  others  American.     The  latter  represent  nearly  every 

American  State.      One  Of   the  cases  was   decided    in   1654;   nearly 

all  of  them  are  modern,  a  large  Dumber  recent,  and  several  were 

decided  in  this  pre-ent   year. 

In  -Mine  instances  where  such  a  course  appeared  desirable, the 
statements  of  the  text  have  hen  followed  with  a  succession  oi 
"  Illustrations,"  each  of  which  gives  a  very  brief  statement  of  facts 
from  a   reported  case,  with  the  decision  of  the  court.     Thus,  for 

(V) 


LAV 


Vi  PREFACE. 

example,  under  Execution,  light  is  thrown  on  the  meaning  of  the 
common  statutory  phrase,  "  in  the  presence  of  the  testator,"  by 
seventeen  illustrations  which  serve  to  mark  out  the  proper  boun- 
daries of  the  requirement  and  the  bearing  of  which  is  summed  up 
in  the  text. 

It  would  be  hardly  justifiable  to  express  a  conviction  that  this 
book  will  prove  as  useful  to  practising  lawyers  as  to  the  student. 
But  it  is  believed  that  it  will  prove  useful  even  to  them  as  a  com- 
pact and  careful  review  and  summary  of  the  important  principles 
and  doctrines  in  its  field,  and  as  a  convenient  means  of  reference  to 
the  best  and  most  telling  authorities.  The  very  wealth  of  material 
in  the  large  treatises,— some  of  which  are  beyond  all  need  of  praise 
for  their  great  worth  and  practical  value, — often  renders  it  difficult 
to  determine  which  of  the  army  of  cases  cited  are  the  best  for 
reading  or  reference.  Here  the  citations  are,  so  to  speak,  few,  but 
they  are  carefully  chosen  and  important.  For  lawyers  who  have 
not  convenient  access  to  large  libraries,  the  selected  cases  also 
constitute  a  reservoir  of  valuable  original  authorities. 

The  book  is  furnished  with  a  full  index,  and  the  table  of  cases 

refers  both  to  the  official  reports  and  to  the  volumes  of  the  National 

Reporter  System. 

s.  c. 
New  York,  September,  1892. 


CONTENTS 


INTRODUCTION, 


PAGE 
1 


CHAPTER   I. 
TESTAMENTARY  INCAPACITY. 

T       T                                                                                                  -         -         -         -  5 

I— Infancy, 

7 
II. — Coverture, 

III.— Alienage, 

IV.— Chime, 10 

V.— Mental  unsoundness, -      12 


CHAPTER  II. 

UNDUE  INFLUENCE.— FRAUD, 95 

CHAPTER   III. 
EXECUTION. 

I. —Signing  by  the  testator,  -  ...       -  214 

EL— Making  or   a.oknowi«edgment  ok   signature   before  wit- 

23(5 
RE88EB, 

°41 

[TJ.— Declaration  of  the  will  to  witnesses, 

2(54 
IV.— RBQUE81    TO   WTTNl  -     TO  BIGN, 

0f57 
V.— ATTESTATION    UJD  SIGNATURE    hy    wiim.sses,       - 


CHAPTEB    IV. 

(vii. 


REVOCATION  AND  REPUBLICATION, 


Vlll  CONTENTS. 

CHAPTER   V. 
FORM,  NATURE,  AND  SCOPE  OF  WILLS. 

PAGE 

I.— Tee  form  of  the  instrument, 382 

II. — Conditional  wills, 397 

III. — Contracts  concerning  testamentary  dispositions,       -        -  408 

IV. — Joint,  simultaneous,  double,  alternative,  and  duplicate 

wills, 421 

V. — Incorporation  by  reference, 425 

VI. — Illegal  provisions,  and  incapable  beneficiaries,   -        -  426 

VII. — Nuncupative  wills, 429 

VIII. — Conflict  of  laws, 436 

IX. — Miscellaneous, 437 

CHAPTER  VI. 

CONSTRUCTION,  PRESUMPTIONS,  AND  RULES  OF  LAW,  -  438 


APPENDIX— The  English  Wills  Act, 469 

INDEX, 483 


TABLE  OF  CASES. 


Adams  r.  Field  (21  Vt.  256),  226. 
Adams  v.   Spaulding  (12  Conn.   359), 

454. 
Adams,  In  Goods  of  (L.  R.  2  P.  &  D. 

367),  383. 
Addington  r.  Wilson  (5  Ind.  137),  24. 
Addy  P.  Grix  (8  Vesey  505),  226. 
Aikin  p.  Weckerly  (19  Mich.  482),  276. 
A  lexander  v.  Beadle  (7  Cold.  126),  259. 
Allen  p.  Allen  (2  Overt.  172),  259. 
Allen  v.  Griffin  (69  Wis.  529,  35  N.W. 

Hep.  21),  17. 
Allen  P.  Public  Administrator  (1  Bradf. 

Sur.  311),  123. 
Allen's  Will  (25  Minn.  39),  264,  276. 
Almosnino,  In  re  (29  L.  J.  Pr.  46),  426. 
Alpaugh,    Matter  of  (8  C.  E.  Green 

5i)7 1,  284-285. 
Alston  p.  Jones  (10  Paige  100),  194. 
Ambre  P.  Weishaar<71  111.  109),  277. 
Am.  Seamen's  Friend  Soc'y  v.  Hopper 

(33  N.  Y.  619),  16. 
Amory  v.  Fellows  (5  Mass.  219),  291, 

307. 
Anderson  v.  Anderson  (112  N.  Y.  104, 

19  N.  E.),  427. 
Andreas  p.Weller  (2  Green  Ch.  (N.  J.) 

COS,,  -J1. 
Andrews  r.  Hrewster  (124  N.  Y.  433, 

J 7  N.  K.  *56),  409. 
Anstice  r.  Brown  (6  Pai.  448),  10 
A]. pel  p.  Byers  (98  Peun.  St.  479),  452, 

462. 
Appleby  /•.  Brock  (76  Mo.  314),  92. 
ArberyV.  Ashed  Hagg.  814),  22,  23. 
Armant,    Succession    01  (48  La.  Ann. 

810),  882  236. 
Armstrong  p.  Armstrong  (29  Ala.  588), 

828,  824  226. 
Arnold    P.  Barle  «2  Lee's    Reports  by 

Phillimore,  529),  5. 
.  p.  Hoover  (6  Pa  21),  818,  820. 
\  b  p.  Ash  (9  Ohio  St.  888),  819 
Ash  more,  In   Goods  of  (3   Curt.  758), 

267. 
Ash  worth  r.  Carleton(12  Ohio  St.  881), 

430. 


Astor,  In  the  Goods  of  (1  P.  D.  150), 

424. 
Atkins  v.  Sanger  (1  Pick.  192),  132, 

161,  172. 
Attorney-General  v.  Parnther  (3  Brown 

C.  C.  441),  69. 
Auburn  Theological  Seminary  v.  Cal 

houn  (25  N.  Y.  428),  194. 
Austin  v.  Graham  (8  Moo.  P.  C.  493), 

23. 
Avres  v.  Ayres  (12  Atl.  Rep.  621,  43 

N.  J.  Eq.  565),  264. 
Ayrey  v.  Hill  (2  Add.  206),  21,  72-75. 

Baker's  App.  (107  Pa.  381),  218. 
Baker  v.  Batt  (1  Curteis  125),  188. 
Baker  v.  Dening  (8  A.  &  E.  94),  271. 
Baker  v.  Hoag  (3  Selden  561),  433. 
Baird,  Matter  of  (47  Hun  77),  168. 
Ballard  v.  Carter  (5  Pick.  112),  322. 
Bancroft  v.  Ives  (3  Gray  367),  323. 
Bancroft  v.  Otis  (8  So.  Rep.  286),  96. 
Bangs  v.  Smith  (98  Mass.  273),  455. 
Bank  v.  Getchell  (59  N.  H.  281),  172. 
Banks  r.  Goodfellow  (L.  R.   5  Q.  B. 

549),  18.  19,  45. 
Banks  v.  Jones  (60  Ala.  605),  441. 
Bannatyne  v.  Bannatyne  (2   Roberts. 

472),  22. 
Bannister  p.  Jackson  (45  N.J.  Eq.  702, 

17  A.  692),  12. 
Barbo  v.  Rider  (67  Wis.  600,  31  N.W. 

155),  16. 
Barker    r.    Bell   et  al.   (46   Ala.  216), 

877-881. 
Barksdale  v.  Hopkins  (23  Ga.  332),  372. 
Barnesly  r.  l'owel  1 1  Ves.  Sr.  287),  210. 
Barney  t.  Hays  (29  Pac.  Rep.  282), 

885. 
Barnum  v.  Barnum  (42  Md.  251),  454 
Barry  r.  Butlin  (1  Curteis  637),  97.  190, 

207. 
Baitee  ».  Thompson  (H  Baxt.  518),  260. 
Ba    Uet    r.    Ilassell  (17  Otto  602),  467. 

Baskin   p.  Baskln  (88  N.  Y.  416),  232, 

237-239,  285. 
Batchelor  v.  Macon  (69  N.  < !.  545),  456. 

(lx) 


X 


TABLE   OF   CASES. 


Bateman  v.  Ponnington  (3  Moore  P.  C. 

328),  404. 
Bates  v.  Barry  (125  Mass.  83),  449. 
Baxter  v.  Abbott  (7  Gray  75),  135. 
Baxter  v.  Knowles  (12  Allen  114),  134. 
Beadles  v.  Alexander  (9  Baxt. 604),  263. 
Beall  v.  Cunningham  (1  B.  Mon.  390), 

161. 
Beall  v.  Mann  (5  Ga.  456),  264. 
Beatty  v.  Labor  (2  McCart.  110),  448. 
Beaubien  v.  Cicotte  (12  Mich.  459),  92. 
Beauclerk  v.   Dormer   (2  Atk.    313), 

447. 
Bennett  v.  Brooks  (9  Allen  118).     See 

Index,  "  Sunday." 
Bennett  v.  Jackson  (2  Phillim.  190), 

431. 
Bennett  v.  Sherrod  (3  Ired.  (N.  Car.) 

303),  367-369. 
Benoist  v.  Murrin  (58  Mo.  307),  52. 
Bergen  v.  Udall  (31  Barb.  9),  190. 
Bernsee's  Will  (17  N.  Y.  S.  669),  100- 

101. 
Betts  v.  Jackson  (6  Wend.  173),  356, 

360,  370. 
Billinghurst  v.  Vickers  (1  Phillim.  187), 

160. 
Bird  v.  Pope  (73  Mich.  483,  41  N.  W. 

514),  408. 
Birdsall  v.  Applegate  (Spenc.  (N.  J.) 

245),  446. 
Blackstone  v.  Blackstone  (3  Watts  335), 

450. 
Blair's  Will,  In  re  (16  Daly  540,  16  N. 

Y.  Supp.  874),  12. 
Blake  v.  Knight  (3  Curteis  547),  239. 
Blake  v.  Rourke  (74  la.  519,  38  N.  W. 

392),  21. 
Blakey  v.  Blakey  (33  Ala.   611),  133, 

166. 
Blewitt  v.  Blewitt  (4  Hagg.  463),  183. 
Bliven  v.  Seymour  (88  N.Y.  469),  442, 

468. 
Blodgett  v.  Morse  (141  Mass.  75),  318. 
Boardman  v.  Woodman  (47  N.  H.  120), 

93. 
Bohanon  v.    Walcot  (1  How.  (Miss.) 

336),  372. 
Bolman  v.  Overall  (80  Ala.  451,  2  So.R. 

624  ;  s.  c.  86  Ala.  168),  408,  410,  411. 
Bonard's   Will  (16  Abb.    Pr.  (N.  S.) 

128),  24. 
Booth  v.  Baptist   Church  (126  N.  Y. 

215),  426. 
Booth,  Matter  of  Will  of  (127  N.  Y. 

109,  27  N.  E.  826),  226-229. 
Borlase  v.  Borlase  (4  No.  Cases  106), 329. 
Botsford  v.  Krake  (1  Abb.  Pr.  R.  (n. 

s.)  112),  431. 
Boudinot  v.  Bradford  (2  Yeates  170  ; 

s.  c.  2  Dall.  266),  327,  373. 


Boughton  v.  Knight  (L.  R.  3  P.  &  D. 

64),   16,  17,  18,  22,  24,  27,    38^8, 

45. 
Bovard  v.  Wallace  (4  Sergt.  &  Rawle 

499),  165. 
Bowers  v.  Bowers  (53  Ind.  430),  319. 
Boyd  v.  Ebly  (8  Watts  66),  51,  165. 
Boylan  v.  Meeker  (28  N.  J.  Law  274), 

128,  141,  152. 
Boyse  v.  Rossborough  (6  H.  L.  C.  2), 

40,  113-116. 
Braddock,  In  the  Goods  of  (1  P.  D. 

433),  273,  383,  425. 
Bradish  v.  Gibbs  (3  Johns.  Ch.  523),  8. 
Bradish  v.  McClelland  (100  Penn.  St. 

607),  425. 
Brady  v.  McCrosson  (5  Redf.  (N.  Y.) 

431).  230.     See  Index,  "  Wills." 
Brainard  v.  Cowdry  (16  Conn.  1),  450. 
Bransby  v.   Haines  (1   Lee's  Rep.  by 

Phillimore  120),  7. 
Brent  v.  Washington  (18  Gratt.  535), 

453. 
Brick  v.  Brick  (66  N.  Y.  144),  52,  164. 
Briggs  v.  Shaw  (9  All.  517),  457. 
Brimmer  v.  Sohier  (1  Cush.  118),  441. 
Brinckerhoof  v.  Remsen  (8  Paige  488, 

affi'd  26  Wend.  325),  243,  246. 
Brittain  v.  Carson  (46  Md.  186),  455. 
Brook  v.  Chappell  (34  Wis.  405),  429. 
Brooke  v.  Townshend  (7  Gill.  10),  52. 
Brook  v.  Tunner  (2  Mod.  170),  8. 
Brown  v.  Brown  (8  El.  &  Bl.  876),  367, 

371. 
Brown  v.  Clark  (77  N.  Y.  369),  248, 

282,  315-316,  317,  376,  426. 
Brown,  In  the  Goods  of  (1  Sw.  &  Tr. 

32),  367. 
Brown  v.  McAllister  (34   Ind.    375), 

242. 
Brown  v.  Mitchell  (75  Tex.  9, 12  S.  W. 

606),  12. 
Brown  v.  Moore  (6  Yerger  272),  163. 
Brown  v.  Ward  (53  Md  376),  12,  17, 

21,  24,  54. 
Brunt  v.  Brunt  (L.  R.  3  P.  &  D.  37), 

329-330 
Brush  v.  Holland  (3  Bradf.  240),  164. 
Brush  v.  Wilkins  (5  Johns.  Ch.   510), 

318 
Bryce,  In  the  Goods  of  (2  Curt.  325), 

223. 
Budlong,  Matter  of  (126  N.  Y.  423,  27 

N.  E.  945),  24,  108-113, 
Bulkley  v.  Wilford  (2  Clark  &  Fin. 

102),  210. 
Bull  v.  Bull  (8  Conn.  47),  455. 
Bundrich  «.  Haygood  (106  N.  C.  468, 

11  So.  E.  423),  431. 
Bundy  v.  Hyde  (50  N.  H.  116),  172. 
Bundy  v.  McKnight  (48  Ind.  502),  85. 


TABLE   OF   CASES. 


XI 


Burgoyne  v.  Showier  (6  Rob.  Eccl.  Rep. 

10),  "291. 
Burkkart    v.    Gladisk  (123   Ind.  337, 

24  N.  E.  118',  17. 
Burleigk  v.  Clougk  (52  N.  H.  267),  455. 
Burns  v.  Burns  (4  S.  &  R.  295),  325. 
Burt  i:  Herron  (66  Penn.  St.  402).  456. 
Burtenshaw   r.  Gilbert  (1  Cowp.  49), 

325,  356. 
Burton  v.  Collingwood  (4  Hagg.  176), 

404,  407. 
Burton  v.  Conigland  (82  N.  C.  99),  447. 
Busk   v.  Lisle  tKy.),  (12  S.  W.  Rep. 

762),  103-107. 
Busknell  v.  Carpenter  (28  Hun  19,  92 

N.  Y.  270),  450. 

Callaway,  In  tke  Goods  of  (L.  R.  15 

,P.  D.  147),  423-424. 
Campbell  v.  Beaumont  (91  N.  Y.  464), 

456. 
Campbell  v.  Campbell  (130  111.  466,  22 

X.  E.  620),  13,  299. 
Campbell  v.  Frenck  (3  Ves.  Jr.  321), 

326. 
(  ampbell  v.  Jamison   (8    Barr.    498), 

366. 
Campbell  o.  Logan  (2  Bradf.  90),  271. 
Canada's  Appeal  (47  Conn.  456),  242. 
Card's  Will  (8  X.  Y.  Bupp.  297),  17. 
Card  v.  Grinman  (5  Conn.  R.  168), 347. 
Carey's  Estate  (49  Vt,  236),  314,  315. 
Carle  <■.  [Jnderhil]  (3  Bradf.  101),  232. 
Carlton  ,-.  Carlton  do  X.  H.  14),  292, 

293  296,  297. 
I    rmichael   v.  Carmicbael  (72  Mich. 

76,40  X.  W.  17:'.;,  408,  409. 
Carpenter  b   Hatch  >t  >//.  (15  Atl.  Rep. 

•-'19,  in  X.  II.  573,  171-17:5,  212. 
fan-  0.  Carr  (1  Mer.  -",.11  a.),  449. 
Carrol]  b.  Bonhan  1 12  X.  .1.  Eq.  ('.25,  it 

A.  871),  481. 
1   utoH  /•.  House  (22  All.  Rep.  litl).  97. 
(  artwrighl   >.  Cartwright  (I   Phillim. 

90),  18,  22,  28,  55.  62  70,  66,  72. 
I       "ii  v.  Dade  1 1  Bro,  Ch.  99).  278. 
1  1   iton  (Law  Rep.  1  Ch.  187), 

117. 
Caton  v.  Caton  (2  II.  L.  137),  '-".'7. 

ifTman  v.  Lone  (82  Pa  St.  72),  148. 
Caulfleld    ''.    Sullivan   (85  X.   V    153) 

B84    159 
1       i'  ■■      I.  late,  //'  /■<  (188  Penn.  Si 

Ml.  I;,  p.  567),  i.'i 
I    wthorn,  In  the  Good    of  (8  Sv 

Tr    U7),  i 
I   kwtborn  0.  Haynes  (24  Mo  286),  129. 
(  baffi  1       Bapti  1  Mi    ionary  Conven 

ti.  n  I  in  Pal 
f  hambt  1     1 .  Queen's  Proctor  (2  (  uri 

413 


Ckanev  d.  Home  etc.  Society  (28  111. 

App.  621),  212. 
Ckase  v.  Kittredge  (1  Allen  49),  271. 
Cketwood  v.  Winston  (40  N.  J.  L.  337). 

447. 
Ckickester  0.  Cobb  (14  Law  T.,  N.  S. 

433),  219. 
Ckrisman  v.  Ckrisman  (16  Ore.  127.  18 

P.  6),  12,  14. 
Ckristian,  In  tke  Goods  of  (2  Roberts. 

110),  269. 
Christmas  v.  Whinyates  (3  Sw.  &  T 

81),  324,  369. 
Ckristopker  v.    Ckristopker    (4  Burr. 

2182),  318. 
Clapp  1:  Fullerton  (34  N.  Y.  190),  16, 

50,  52,  54,  81,  92,  93,  163. 
Clark, In  Goods  of  (2  Curt.  329), 223, 226. 
Clark  d.  Lear  (cited  in  Cartwrigkt  ». 

Cartwright),  23,  70. 
Clark   r.   Morrison  (25  Penn.  St.  453), 

133,  165. 
Clark  v.  Scripps  (2  Roberts.  563),  324. 
Clark  r.  Smith  (49  Md.  IO61,  442. 
Clark  1:  State  (12  Okio  483),  92. 
Clark  v.  Vorce  (19  Wend.  232),  298. 
Clarke,  Goods  of   (1  Sw.  &  Tr.   22), 

216,  223. 
Clausmann,  Will  of  (24  Weekly  Dig. 

226),  117. 
Clearwater's  Will  (2  N.  Y.  Supp.99),14. 
Cleveland  v.  (arson  (37  N.  J.  Eq.  378), 

453. 
Clifton  v.  Clifton  .47  N.  J.  Eq.  227,  21 

Atl.  Rep.  333,  12. 
Cloak  i>.  Hammond  (L.  R.  34Chj,Div. 

355),  462,  466. 
Cock  r.  Cooke  iL.  R.  1  P.  &  D.  241). 

885,  390. 
Cody  r.  Conly  (27  Gratt.  313).  398. 
Collin  r.  Comn  (23  X.  Y.  9),  206,  207. 

2?9,  246,  265  267. 
CofTin.in  r.  ColTman  (8  B.  E.  Rep.  672: 

85  Va.  459  .  445. 
<  loghlan   /-.   ( loghlan   (cited    In  Cart- 

wrighl  /-.  Cart wi ighl ),  70 
Coil  v.  Patchen  (77  N.  Y.  588  .  52 
Cole  r.  Am  Bapl   etc.  Boc'y  (<>4  X.  11. 

445,  II  Ail.  Rep.  78),  414. 
Cole  d.  Littlefleld   85  Me.  445),  456 
Coles  Will.  ///  n  ( 19   \\  is   181,  5  N. 

846  .  Mi. 
Coleman    0.  Coleman   (2  Vea.   Jr.  689), 

468. 
Coles,  In  the  Goods  of  (L.  U    2  P.  & 

D.  862  .  890. 
Colhoun  p.  Jones  (2  Red!  84),  218. 
Oollagan  v.  Burns  '57  Blaine  149),  827, 

176 
Collins  i    Townlej  (21  N   J.  Eq.  858), 

1 1,  29,  80. 


Xll 


TABLE   OF   CASES. 


Collison  o.  Girling  (4  My.  &  Cr.  75), 

440. 
Colvin  b.  Fraser  (2  Hagg.    266),  356, 

363,  425. 
Colvin  r.  Warford  (20  Md.  357),  372. 
Colyer,  Goods  of  (14  P.  D.  48),  386. 
Comstock  v.  Hadlyme  (8  Conn.  254), 

86,  128,  139. 
Conboy  v.  Jennings  (1  T.  &  C.  622), 

230-232. 
Converse  v.  Allen  (4  Allen  512),  154. 
Converse  v.  Converse  (21  Vt.  168),  12, 

25-27. 
Conway,  Matter  of  (124  N.  Y.  455,  26 

N.  E.  1028\  230. 
Conway  v.  Vizzard  (122  Ind.  266,  23 

N.  E.  771),  212. 
Coode,  In  the  Goods  of  (L.  R.  1  P.  & 

D.  449),  424. 
Cook  v.  Winchester  (Mich.)  (46  N.  W. 

106),  279. 
Cooke,  Appeal  of  (132  Penn.  St.  533, 

19  A.  274),  9. 
Coppin  v.  Dillon  (4  Hagg.  361),  309. 
Cottrell,  In  the  Matter  of  (95  N.  Y. 

329),  2S7-289. 
Cover  v.  Stem  (67  Md.  449,   10  Atl. 

Rep.  231),  386,  395. 
Cowell  v.  Cornell  (75  N.  Y.  91),  97. 
Cowley  v.   Knapp  (42  N.  J.  L.  297), 

385. 
Cox  v.  Cox  (4  Sneed  87),  260,  261. 
Cox  v.  M'Kinney  (32  Ala.  462),  450. 
Craig  v.  Leslie  (3  Wheat.  563),  10. 
Cram  v.  Cram  (33  Vt.  15),  92. 
Crispell  v.  Dubois  (4  Barb.  397),  190. 
Crittenden,  Estate  of  (Myr.  Prob.  R. 

(Cal.)  50),  265. 
Crockett  v.  Crockett  (Meigs  95),  258. 
Croft  v.  Day  (1  Curteis  853),  188. 
Cross  v.  Cross  (8  Q.  B.  714),  385,  396- 

397. 
Crossman  v.  Crossman  (95  N.  Y.  145), 

425. 
Cutter  v.  Butler  (25  N.  H.  343),  8. 
Cutter  v.  Fanning  (2  Iowa  580),  305. 
Cutto  v  Gilbert  (9  Moore  P.  C.  131), 

372. 

Dack  v.  Dack  (84  N.  Y.  663),  247. 
Dadds,  Goods  of  (Dea.  &  Sw.  290), 

325. 
Dair.tree  v.  Butcher  (13  P.  D.   102), 

239. 
Dale's  Appeal  (57  Conn.  127),  95,  97. 
Dale  v.  Dale  (38  N.  J.  Eq.  274).  97. 
Damon  v.  Damon  (8  Allen  192),  398, 

402. 
Dan  v.  Brown  (4  Cow.  483),  84,  133, 

165. 
Daniel  v.  Hill  (52  Ala.  430),  391. 


Dart  v.  Dart  (7  Conn.  251),  447. 
Davis  v.  Calvert  (5  Gill  &  Johns.  269), 

162. 
Davis  v.  Dunwoody  (4  T.  R.  678),  303. 
Davis  v.  Fogle  (124  Ind.  41,  23  N.  E. 

860),  319. 
Davis  v.  Hendricks  (12  S.  W.  887,  99 

Mo.  478),  408. 
Davis,  In  the  Goods  of  (3  Curteis  748), 

232. 
Davy  o.  Smith  (3  Salk.  395),  277. 
Delafield  v.  Parish  (25  N.  Y.  10),  13, 

182,  187,  189,  190,  193. 
Den  v.  Mayfield   (5    Hayw.    (Tenn.) 

121),  258. 
Denison's  Appeal  (29  Conn.  399),  17- 

121,  123. 
Denmead's  Appeal   (29    Conn.    309), 

154. 
Denny  v.  Pinney's  Heirs  (60  Vt.  524, 

12  Atl.  Rep.  108),  249. 
Denson  v.  Beazley  (34  Texas  191),  52. 
Dew  v.  Clark  (3  Addams  79),  15,  17, 

18,  24,  41,  42,  50,  51. 
Dewey  v.  Dewey  (1  Mete.  353),  239. 
Dewitt  v.  Yates  (10  Johns.  (N.   Y.) 

156),  444. 
Dickerson,  In  re  (55  Conn.  223, 10  Atl. 

Rep.  194),  443. 
Dickinson  v.  Barber  (9  Mass.  225),  88. 
Dickinson  v.  Swatman   (30  L.  J.  (N. 

S.)  P.  &  M.  84),  371,  374. 
Dietrich  v.  Dietrich  (4  Watts  167),  165. 
Diez,  Matter  of  (50  N.  Y.  88),  281,  422. 
Dillon  v.  Grace  (2  Sch.  &  Lef.  456),  8. 
Dobson,  In  the  Goods  of  (L.  R.  1  P. 

&  D.  88),  400. 
Dockum  v.  Robinson  (26  N.  H.  372), 

431. 
Dodworth  v.  Crow  (1  Dem.  256),  274, 

275 
Doe  v.  Allen  (12  A.  &  A.  451),  375. 
Doe  v.  Evans  (10  Ad.  &  El.  228),  326. 
Doe  v.  Lancashire  (5  T.  R.  49),  323. 
Doe  v.  Perkes  (3  Barn.  &  Aid.  489), 

84,  325,  334-335,  337,  340,  347. 
Doe  d.  Chichester  v.  Oxenden  (3  Taunt 

147),  460. 
Doe  d.  Clements  v.  Collins  (2  T.  R. 

498),  460. 
Doe  d.  Gore  v.   Langton  (2  B.  &  A. 

680),  464. 
Doe  d.  Lord  v.  Needs  (2  M.  &  W.  129), 

465. 
Doe  d.  Small  «.  Allen  (8  T.  R.  147). 

95,  98. 
Doe  d.  Strickland  v.  Strickland  (8  C. 

B.  724),  310,  425. 
Dorman's  Will,  Matter  of  (5  Dem.  112), 

81. 
Dotts  v.  Feltzer  (9  Penn.  St.  88),  165. 


TABLE   OF   CASES. 


Xlll 


Dousherty    r.    Dougherty    (4   Mete. 

(Ky.)  25),  407. 
Dove  r.  Torr  (128  Mass.  38),  453. 
Downie's  Will,  Matter  of  (42  Wis.  66), 

269. 
Downing  v.  Marshall  (23  N.  Y.  373), 

454. 
Drake  v.  Lanning  (N.  J.)  (24  Atl.  Rep. 

378),  420. 
Drew  i:  Wakefield  (54  Me.  296),  452. 
Drummond    v.  Dnimmond   (26  N.  J. 

Eq.  234),  447. 
Dnimmond    v.  Parish   (3   Curt.  522), 

431,  433. 
Duffle  d.  Corridon  '40  Ga.  122\  269. 
Du  Hourmeliii  r.  Sheldon  (1  Beav.  79), 

10. 
Dunham's  Appeal  (27  Conn.  192),  18, 

92. 
Dunn  p.  Bank  of  Mobile  (2  Ala.  152), 

391. 
Durant    p.  Ashinon  (2  Rich.  (S.  Car.) 

184;,  85,  163. 
Durham  P.  Smith  (120  Ind.  463,  22  X. 

E.  383),  12,  18. 
Dyer,  Goods  of  (1  Hagg.  219),  383. 

Earl  i:  Rowe  (85  Me.  414),  446. 
Karl.-  p.  Norfolk  (36  N.  J.  Eq.  92),  95. 
Kastis  r.    .Montgomery  (Ala.)   (9   So. 

Rep.  311),  95. 
Eaton  >■.  Benton  (13  Hill  (N.  Y.)  576), 

414. 
Krk.it  p.  Klowry  (43  Pa.  St.  52),  149. 
Eldred  p.  Warner  (1  Ariz.  175,  25  Pac. 

R.  800),  111. 
Elkinton   v.  Brick  (44  N.  J.  Eq.  158, 

15  A.  891),  17.  21. 
Kills,  In  Goods  Of  (2  Curt.  395),  279. 
Ellis  p.  Cary  (71  Wis.  176),  418. 
Kills  ,    Darden  (86  Ga.  368,  12  S.  E. 

652  ,811. 
Ellia  p.  Smith  o  Vesey  11 1,  225. 
Ellmaker   p.    Hrinckl.v   <  1  #»   Leigh  & 

Rawle  77  .  151. 
Elmore  p.  Mustin  (28  Ala.  809\  891. 
Elms  v.  Elms  (1  8w.  &  Tr.  155),  885- 

B41, 
Emerson,  Good    of  (L.  R.  9  [r.  443), 

2 1 5. 
Emery,   Appellant   (81    Me.  275 ;  sub 

nom.   Hunt's   Will,   17  A.  68),  818- 

815. 
Evans  p.  A.nderaon  (15  Ohio  Bt.  824), 

819 
Everetl  p.  Mount  (22  Qa   82 

■  it  p.  Everltl  (29  N.  V.  89),  157. 

nJld  b  Ba  i  omb  (84  VI  B98),  161. 
Fairfax'    I  >e\  i  ee  p.  I  [untei     I  .■ 
Cranch  608),  10,  128. 


Farmer  v.   Kimball    (46  N.  H.  439), 

454. 
Faulds  v.  Jackson  (6  N.  C.  App.  1), 

283. 
Fellows  v.  Allen  (60  N.  H.  439),  314, 

315. 
Fenwick  v.  Thornton  (M.  &  M.  51), 

163. 
Ferguson-Davie    v.    Fergusou-Davie 

(15  P.  D.  109),  387. 
Ferguson   8.   Stewart  (14  Ohio  140), 

453. 
Fettiplace  v.  Gorges  (1  Ves.  Jr.  46),  9. 
Finch  v.  Finch  (L.  R.  1  P.  &  D.  371), 

368. 
Fincham  v.  Edwards  (3  Curt.  63),  278. 
Firth  v.  Denny  (2  All.  471),  452. 
Fisher,  Re  (4  Wis.  254\  309. 
Fisher  v.  Kimball  (17  Vt.  323),  8. 
Fisher  v.  Strickler  (10  Barr.  348-,  415. 
Flimm  v.  Davis  (18  Ala.  132),  447. 
Flint  ham    v.    Bradford    (10  Penu.  St. 

Flood  v.  Pragoff  (79  Ky.  607),  242. 
Florey  v.  Florey  (24  Ala.  241),  50. 
Forbes  v.  Gordon  (8  Phill.  625),  404. 
Force  and  Hembling's  Case  (4  Co.  61), 

315,  316,  324. 
Ford  v.  Ford  (7  Humph.  92),  327. 
Forney  v.  Ferrell  (4  West  Va.  729), 

166.' 
Forsyth  v.  Ganson  (5  Wend.  558),  165. 
Fortune  r.  Ruck  (23  Conn.  1),  300. 
Foster's  Appeal  (87  Penn.  St.  67),  364- 

366. 
Foster's  Estate  (142  Penn.  St.  62,  21 

A.  70S),  24. 
Fox  p.  Marston  (1  Curt.  494),  318. 
Fransen's  Will  (2  Casey  203),  366. 
Freedley's  Appeal  (60  Penn.  St.  344), 

156. 
French*.  French  (14  W.  Va.  458),  407. 
Fritz  p.  Turner  (46  N.  J.  Eq.  515,  22 

Ail.  Rep.  122),  97,  216. 
Frost  p.  \\  heeler  (43  N.  J.  Eq.  573,  12 

A.  612),  21. 
Fuller  p.  Fuller  (88  Ky.  845),  292. 

Gage  p.  Gage  (8  Curteis451),  239. 
Gardiner  p.  Courthope  I  L.  K.  12  P.  D. 

I  I  .  809. 
Gardner  v.  Frieze  et  al.  1 19  Atl    Rep. 

118,  16  R.  I.  640),  121    128. 
Q  irdner  p.  Guild  (106  Ma    ,  25  .  154. 
Gardner,  In  the  Goods  of  (1  Bw.  A  Tr. 

109),  866  867. 
Gardner  o.  Lambacb  (47  <ia.  188),  52 
Gay  p.  Gay  (84  AJa.  88, 4  Bo.  Bt  p   I  '  i, 

::is. 
Geale,  //.  n  (8  Bw.  &  Tr.  480),  14,  IS, 

88  84 


XIV 


TABLE   OF   CASES. 


Gehrkc  v.  State  (13  Tex.  568),  93. 
Gelston  v.  Shields  (78  N.  Y.  275),  444. 
Gibson  v.  Gibson  (9  Yerg.  329),  92. 
Giddings  v.  Seward  (16  N.  Y.  365),  427. 
Gilbert  v.  Chapiu  (19  Conn.  346),  456. 
Gilbert  v.  Knox  (52  N.  Y.  125),  246, 

249,  265. 
Giles  v.  Warren  (L.  It.  2  P.  &  D.  401). 

329,  348-349. 
Gilhara  v.  Martin  (42  Ala.  365),  391. 
Glancy  v.  Glancy  (17  O.  St.  134),  223, 

230. 
Glover  v.  Smith  (57  L.  T.  60),  287. 
Goddard  «.  May  (109  Mass.  468),  457. 
Goerke's  Will  (Wis.)  (50  N.  W.  345), 

389. 
Gombault  ».  Public  Adm'r  (4  Bradf. 

226),  22,  53,  59. 
Goodell  v.  Hibbard  (32  Mich.  47),  455. 
Goodtitle  v.  Southern  (1  M.  &  Sel.  299), 

460. 
Gould  v.  Lakes  (6  P.  D.  1),  375. 
Gould  v.   Mansfield  (103  Mass.  408), 

409,  411.  416-418. 
Gould  v.  Safford  (39  Vt.  498),  431. 
Gove  v.  Gawan  (3  Curt.  1511,  282,  288. 
Grabill  v.  Barr  (5  Pa.  4411,  218. 
Grant  v.  Grant  (L.  R.  5  C.  P.  [Exch.], 

727),  462. 
Grant  v.  Thompson  (4  Conn.  203),  88, 

141. 
Grayson  v.  Atkinson  (2  Vesey  454), 225. 
Greeuwood   v.    Greenwood    (cited    iu 

Cartwright  v.  Cartwright),  70. 
Gregory  «.  Oates  (Ky.)  (8  S.  W.  Rep. 

231),  9. 
Griffith  v.  Differnderffer  (50  Md.  466), 

95.  150-160. 
Grimball  v.  Patton  (70  Ala.  626),  447. 
Groce  v.  Rittenberry  (14  Ga.  234),  454. 
Grubbs  v.  Marshall  (Ky.)  (13  S.  W. 

447),  237. 
Gulick  v.   Gulick  (27  N.  J.  Eq.  498), 

449. 

Habergham«.  Vincent  (2  Ves.  Jr.  204), 

384,  386. 
Hacker  v.  Newborn  (Styles,  427),  99. 
Hadden  v.  Fladgate  (1  Sw.  &  Tr.  48\ 

9. 
Hall  v.  Chaffee  (14  N.  H.  219\  447. 
Hall  v.  Hall  (L.  R.  1  P.  &  D.  481),  95, 

99-100. 
Hall  v.  Hancock  (15  Pick.  258),  454. 
Hall  v.  Waterhouse  (5  Giff.  64),  9. 
Halsey  v.  Paterson  (37  N.  J.  Eq.  445), 

453. 
Hamilton's  Estate  (74  Pa.  St.  69),  425. 
Hammon  v.  Huntley  (4  Cow.  493),  165. 
Hammond  v.  Dike  (42  Mina  273,  44 

N.  W.  61),  212. 


Hard  v.  Ashley  (117  N.  Y.  606,  23  N. 

E.  177),  441. 
Harder  v.  Harder  (2  Sandf.  Ch.   17), 

417. 
Hardy  v.  Merrill  (56  N.  H.  227),  92,  93, 

172. 
Hardy  v.  Wilcox  (58  Md.  180),  455. 
Harkius,  In  the  Will  of  (N.  Y.  Law 

Journal,  May  20,  '92,  p.  478),  283- 

284. 
Harmony  Lodge,'  Appeal  of  (127  Penn. 

St.  269,  18  A.  10),  21. 
Harrel,  etc.  v.  Harrel,  etc.(l  Ky.  203), 

169-171. 
Harrel  v.  Ward  (2  Sneed  611),  259. 
Harris  v.   Berrall  (1  Sw.  &  Tr.  153), 

357. 
Harrison  v.  Jewell  (2  Dem.  37),  442. 
Harrison  v.  Rowan  (3  Washington  Ct. 

Court  580),  13,  151. 
Harrison's  Appeal  (100  Penn.  St.  458), 

141. 
Harvey  v.  Anderson  (12  Ga.  69),  163. 
Harwell  v.  Lively  (30  Ga.  315),  372. 
Harwood  v.    Goodright    (Cowp.   87), 

417. 
Hastings  v.  Rider  (99  Mass.  622),  92, 

93. 
Hatfield  v.  Thorp  (5  B.  &  Aid.  589), 

303. 
Hathom  v.  King  (8  Mass.  371),  14,  15, 

29. 
Hauberger  v.  Root  (6  Watts  &  Serg. 

431),  133,  165. 
Haus  v.  Palmer  (21  Penn.  St.  296),  430, 

431. 
Havard  v.  Davis  (2  Binn.  406 \  366. 
Haven  v.  Hilliard  (23  Pick.  10),  299, 

307. 
Haven  v.  Howard  (23  Pick.  10),  297. 
Hawes   v.    Humphrey   t9  Pick.    350), 

297,  300,  307,  322.  " 
Hawke  v.  Euyartetf  al.  (46  N.  W.  Rep. 

422,  30  Neb.  149),  427. 
Hawkins  v.  Hawkins  etf  al.  (54  la.  Rep. 

443,  6  N.  699).  292.  304-305. 
Hawley  v.  Northampton  (8  Mass.  38), 

447. 
Hays,  Goods  of  <2  Curt.  338),  431. 
Head  p.  Head  (1  T.  &  R.  138),  208. 
Heald  r.  Thing  (45  Me.  392),  92. 
Heath  v.  Withington  (6  Cush.  497),  9. 
Hebden,  Will  of  (20  N.  J.  Eq.  473,, 

431. 
Heck  v.  Clippinger  (5  Penn.  St.  588), 

453. 
Heil brim's  Estate  (9  Penn.  Co.  Ct.  R. 

350),  97. 
Hemphill  v.  Moody  (62  Ala.  510),  442. 
Henshaw  v.   Foster    (19    Pick.    312), 


TABLE   OF   CASES. 


XV 


Herbert  v.  Tarball  (1  Keb.  589),  6. 
Herster  p.  Herster  (116  Pa.  St.  612,  11 

Atl.  Rep.  410),  148. 
Herster  b.  Herster   (16   Atl.  Rep.  342, 

122  Perm.  St.  239),  136-150. 
He<s'  Will    (Minn.)    (51    N.  W.   Rep. 

614),  95. 
Hewitt.  .Matter  of  (91  X.  Y.  261),  230. 
Biggins  ».  Carlton  (28  Md.   115),  17, 

265. 
Hi --ins.  In  re  (94  X.  Y.  554),  228. 
Hill  v.  Bank  (45  X.  II.  270),  457. 
Hill  p.  Bowers  (120  Mass.  135),  454. 
Hindmarsh  b.  Carlton  (8  II.  L.  C.  160), 

268. 
Bindson  /•.  Weatherill  (5  De  Gex,  M. 

A-  G.  301),  205. 
Hiscocks  p.    Uncocks  (5  Mees.  &  "W. 

362),  460,  465. 
Biae  v.  Fincher  (10  Ired.  L.  139),  347. 
Hi.v   /•.  Whittimore  (4  Met.  545),  21, 

?0-72. 
Bobbs  P.  Knight  (1  Curt.  768\  353. 
Bodsden    p.    Lloyd   (2    Bro.  Cb.  534), 

315. 
Hodgson  v.  Tex  (3  Ch.  D.  122\  449. 
Boerth  b.  Zable  (Ky.)  (17  S.  W.  Hep. 

360),  24. 
Holdfaal    B.   Dowsing  (2  Stra.  1253), 

801,  302. 
Holgate,  In  the  Goods  of  (1  Sw.  &  Tr. 

261  ,  282  ■: 
Booton  o.  Head  (3  Pliillim.  26),  371. 
Horn    r.  Pullman  (72   X.  Y.  269,  s.  c. 

in  Hun  171  ,  13,  14,  24,  164. 
Borton  b.  Johnson  (18  Ga.  396),  272. 
tauer  '-.   Hoshauer    26  Penn.  St. 

mi  .  189,  264. 
Hoskins   <.   Boskins  (Ky.)   (7  S.  W. 

546  .11. 
Boughton  b.  Kendall  (7  All.  76),  453. 
How   r.   Goodfrey   (Finch's   R.  861  , 

185 
Bowel!  '.  Barden   ::  Dev.  W2),  87. 
Boysradt  b.  Kingman  (22  X.  Y. 

Hubbard  b.  Alexander  (8  Ch.  Div.  788), 

Hubbard   b.   Hubbard   <*  X.  Y.  L96), 

182   186. 
Hubbard  p.  Lloyd  (6  '*nsh.  528 ,  154. 
Budson  '.  Hudson  (87  Ga   678,  18  B. 

I..  588  ,  120. 
Hughes   i    IIh  he      12  B    Mon.  1 15), 

i.,; 
Hughes «p.  Hughes'  Ex'r  (81  Ala   519), 

Hughes  p.  Knowlton  (87  Conn.  129  , 

Hugo,  In    IIh    I     ■•!    (2  P    I' 

122  I:-; 


Hiiffuenin  v.  Basely  (14  Vesey  Jr.  273), 

193. 
Hulme  v.  Tenant   (1   Lead.  Cas.  Eq. 

679),  9. 
Hunt  v.  Hunt  (4  Gray  190),  446. 
Hunt,  Goods  of  (L.  R.  3  P.  &  D.  250), 

437. 
Hunt,  In  re  (110  N.  Y.  278,  18  N.  E. 

106),  228. 
Hurst  p.  Beach  (5  Madd.  358),  440. 
Hutchinson's  Appeal  (34  Conn.  300), 

457. 
Hyde  p.  Hyde  (8  Vin.  Ab.  142),  351, 

355. 

Idley  v.  Bowen  (11  Wend.  227),  356, 

360. 
111.  Cent.  R.R.  Co.  v.    Bosworth  (133 

U.  S.  92,  10  S.  Ct.  R.  231),  12. 
Ingoldby  v.  Iugoldby  (4  No.  Cas.  493), 

377. 
In -ram  p.  Fraley  (29  Ga.  553),  456. 
Ingram  p.Wyatl  (1  Haggard  384),  188. 
Irish  p.  Smith  (8  Serg.\\:  Rawle  573), 

88,  123. 

Izard  p.  Executor  of  Izard  (1  Dessau. 
Rep.  116), 

.lack  r.  Shoenberger  (10  Harris  416), 

366. 
Jackson  p.  Betts  (6  Cowen  377).  84. 
JacksOn  p.  Durland  (2  Johns.  Cas.  314), 

300,  306. 
Jackson   p.   Holloway  (7  Johns.  394), 

344,  380. 
Jackson    p.    Jackson  (39   N.  Y.   153), 

214,  215,  216,  281. 
Jack-on    p,  Kniffen   (2  Johns.  31),  85, 

89,  90,  128,  129,  140. 

Jackson  p.  Patl ic  (9  Johns.  312),  344. 
Jackson    p,    Rodgers  et  al.  (9  Johns. 

312),  380. 
Jackson    r.  Van    Duscn   (5  Johns.  (N. 

V.)  144),  269,  271. 
Jackson  i    Woods  (1  Johns.  Cas.  163), 

800,  806. 
Jacobson,  Matter  of  (6  Dem.  298),  229- 

380. 
James  p.  Cohen  (8  Curt.  Ecc  770),  871. 
James  b.  Hacklej  i  Lfl  Johns.  278),  165. 
James   b.   Marvin   (8  (  onn.  576),  872, 

880. 
.Idler  on,   In  rr  ilO   Whcalon    K.  428), 

188 
Jenkins  p.  Gaisford  (8  Sw.  &  Tr.  98), 

216  '  '•! 

.1,  Qn<  *  -    i  flncb  (5  P.  D.  106),  280. 
Ji    i  -   Parker  (6  Gratl   <\  a  \61  i,  869, 

.loi,,,  on  b.  Hubbell  (10  X  J.  Bq.  882), 
W9,  H8,  120. 


XVI 


TABLE   OF   CASES. 


Johnson's  Will,  Re  (40  Conn.  587),  325, 

375. 
Johnson  v.  Stanton  (30  Conn.  303),  455. 
Johnston  v.  Glasscock  (2  Ala.   239), 

431. 
Jones  v.   Arterburn  (11  Humph.  97), 

258 
Jones  v.  Hartley  (2  Whart.  103),  366. 
Jones  v.  Martin  (3  Ambler  882),  414. 
Jones  v.  Nicholay  (2  Roberts.  288),  386. 
Jones  v.  Robertson  (37  Mo.  App.  163), 

97. 
Jones,  In  the  Goods  of  (4  Notes  of 

Cases  532),  232. 
Jones  v.  Tucker  (41  N.  H.  546),  172. 
Jordon    v.   Jordon's  Adm'r  (65  Ala. 

301),  390-395. 
Julke  v.  Adam  (1  Redf .  454),  164. 
Justice  v.  Lang  (52  N.  Y.  329). 

Kane  v.  Bunn  (R.  I.)  (20  Atl.  Rep.  10), 

122. 
Kaufman,  Matter  of  (131  N.  Y.  620, 

43  K  Y.  St.  Rep.  282),  317-318. 
Kanuss'  Appeal  (114  Pa.  St.  10,  6  Atl. 

Rep.  394),  149. 
Keagle  v.  Pessell  (Mich.)  f52  N.  W. 

Rep.  58),  420. 
Keeler's  Will  (3  N.  Y.  Supp.  629),  24, 

81. 
Keen  v.  Keen  (L.  R.  3  P.  &  D.  105), 

375 
Kehoe,  In  Goods  of  (13  L.  R.  (Ir.)  13), 

426. 
Keith  v.  Lothrop  (10  Cush.  453),  92. 
Keithley  v.    Stafford   (126  111.  507,  18 

N.  E.  740),  20,  287. 
Kellum,  Matter  of  (52  K  Y.  517),  282, 

288. 
Kellum,  Matter  of  (50  K  Y.  298),  209. 
Kelly  v.  Reynolds  (39  Mich.  464),  442. 
Kempsey  v.  McGinness  (21  Mich.  123), 

92 
Kendig  v.  Smith  (39  111.  300),  447. 
Kenebel  v.  Scrafton  (2  East  530),  318, 

323. 
Kennedy  v.   Upshaw  (66  Tex.  442,  1 

S.  W.  308),  17. 
Kent  v.  Kent  (62  N.  Y.  560),  409. 
Kerr  v.  Lunsford  (31  W.  Va.  659,  8 

S.  E.  493).  12,  14,  17,  95. 
Keteltas  v.   Keteltas  (72  N.  Y.  312), 

442. 
Key  v.  Holloway  (7  Baxt.  575),  260. 
Killick,   In  Goods  of  (3  Sw.   &  Tr. 

578),  279. 
Kimball  v.  Crocker  (53  Me.  267),  450. 
Kimball  v.  Tilton  (118  Mass.  311),  450. 
Kinne  v.  Kinne  (4  Conn.  102),  140. 
Kinnebrew  v.  Kinnebrew  (35  Ala.  625), 

391,  395. 


Kirkcudbright    v.    Kirkcudbright    (1 

Hagg.  Ecc.  825),  371. 
Kirkpatrick,  Matter  of  (22  N.  J.  Eq. 

463),  324. 
Knox's  Appeal  (26  Conn  25),  17. 
Knapp  v  Knapp  (10  N.  Y.  276),  360. 
Knapp  v.  Reilly  (3  Dem.  427),  216. 
Knox,  Estate  of  (131  Penn.  St.  220,  18 

A.  1021),  215,  217-222,  385. 
Konvalinka    v.    Schlegel  (104  N.  Y. 

125,  9  N.  E.  868),  448. 
Kramer  v.  Weinert  (81  Ala.  414,  1  So. 

26),  12. 
Krell  v.  Codman  (154  Mass.  454,  28  N. 

E.  578),  418. 

Lake  r.  Ranney  (33  Barb.  49),  190. 
Lansing  v.  Russell  (3  Barb.  Ch.  325), 

191. 
Lane  v.  Lane  (95  N.  Y.  494),  244-249, 

266. 
Lathrop  v.  American  Board  of  Foreign 

Missions  (67  Barb.  590),  52. 
Lathrop  v.  Borden  (5  Hun  560),  52. 
Laughton  v.  Atkins  (1  Pick.  535),  370. 
Lautenshlager    v.    Lautenshlager    (80 

Mich.  285,  45  N.  W.  Rep.  147),  395. 
Lawrence  v.  Cook  (104  N.  Y.  632,  11 

N.  E.  144),  456. 
Lawson  v.  Morrison  (2  Dall.  286),  373. 
Lawyer  v.  Smith  (8  Mich.  411),  327, 

369-370,  375. 
Lay,  Goods  of  (2  Curt.  375),  431. 
Layman's  Will,  In  re  (40  Minn.  371, 

42  N.  W.  286),  17. 
Leathers  v.   Greenacre  (53  Me.  561), 

430,  431. 
Le  Bau  v.  Vanderbilt  (3  Redf.  384), 

160-168. 
Lee  v.  Dill  (11  Abb.  Pr.  214),  190. 
Lee  v.  Lee  (4  M'Cord  (S.  Car.)  183),  24. 
Lee's   Case  (46  N.  J.  Eq.  193,  18  A. 

525),  12,  21,  27. 
Leech  v.   Leech  (5  Clark  (Penn.)  86, 

affi'd  9  Harr.  67),  24. 
Lemayne  v.   Stanley  (3  Lev.  1),  224, 

225 
Leroy,  Ex  parte  (3  Bradf?  227),  268. 
Levis's  Estate,   In  re  (140  Penn.  St. 

179,  21  Atl.  Rep.  242),  21. 
Lewis,  In  the  Goods  of  (1  Sw.  &  Tr. 

31),  352-353. 
Lewis  v.   Lewis  (11  N.  Y.  220),  239, 

240,  241,  242-244,  247,  286. 
Lewis  v.  Mason  (109  Mass.  169),  162. 
Lillie  ».  Lillie  (3  Hagg.  184),  356. 
Linch  v.  Linch  (1  Lea  526),  263. 
Lindsay  v.  Lindsay  (L.  R.  2  P.  &  D. 

459),  402. 
Lindsay,  In  ex  parte  (2  Bradf.  204), 

403. 


TABLE   OF   CASES. 


xvn 


Liney's  Will  (13  X.  Y.  S.  551),  116- 

117. 
Lisle  d.  Tribble  (Ky.)  (17  S.  W.  Rep. 

740),  408. 
Lister  v.  Smith  (3  Sw.  &  Tr.  282),  250- 

25:3. 
Lockwood,  Matter  of  (28  N.  Y.  St. 

Hep.  164),  78-82. 
Loder  r.  Whelpley  (111  X.  Y.  239,  18 

X.  E.  874),  97. 
Long  c.  Zook  (13  Penn.  St.  400),  216, 

219. 
Lomichamp  r.  Fish  (2  B.  &  P.  (New 

Rep.  i  415),  15.  38. 
Longford   c    Eyre   (1  P.  Wms.  740), 

277. 
Look.  Matter  of  (26  X.  Y.  St.  Rep.  745. 

affl'd  125  X.  Y.  762,  7  X.  Y.  S.  298), 

339. 
Look's  Will,  In  re  (5  X.  Y.  Supp.  50), 

281 
Lord  v.  Lord  (58  X.  II.  7),  173,  269. 
Lovegrove,  In  the  Goods  of  (2  Sw.  & 

Tr.  453),  421-422. 
Lovell  r.  Quitman  (88  X.  Y.  377),  324. 
Lowe  r.  Jolliffe  (1  W.  Bl.  365).  286. 
Lower  v.  Clement  (25  Penn.  St.  63), 

148. 
Lucas  r.  Parsons  (24  Ga.  640),  52. 
Ludlow  v.  Ludlow  (35  X.  J.  Eq.  480), 

239. 
Lyles  r.  Lyles  (2  Xott  &  McC.  (S.  C.) 

581),  884. 
Lyons  v.  Campbell  (88  Ala.  462,  7  So. 

250),  97. 

McCoon  r.  Allen  (45  X.  J.  Eq.  708,  17 

A.  820),  17. 
McCoy  r.  Empire  Warehouse  Co.  (125 

V  'V    785,  27  \.  E.  Ins,,  247.  249. 
McCulloch  o.  Campbell  (48  Ark.  867, 

.-.  s.  W.  590),  17. 
McCune  r.  House  (8  Ohio  144),  309, 

429. 
McCurdy  o.  Weal!  (7  A.  566,  42  X.  J. 

Eq.  888),  876 
McElwaine,  Re(18  X.  J.  Eq.  499),  216, 

227. 
McGuire  v.  Kerr  (2  Bradf.  256),  '.':'.l 
Mellu  rh's  Will,  Matter  of  (17  N.   Y 

Week.  Dig.  502),  Bl 
Mclntire  v.  Mclntire  (64  X.  11.609,  15 

Atl.  R.  218),  819. 
Mclntire  p.  Worthington  (68  Md,  308, 

12   \H.  R.  251  I,  826. 
McKinnon  • .   McKinnon  - 16  V    718), 

887,  895. 
McMahon  o.   Ryan  (20  Pa.   St.  :; 

150. 
McMichael  v.   Hunt    (85  X    C.  844), 

449. 

B 


MeXaughten's  Case  (10  CI.  &  F.  200), 

43. 
McXeiledge  v.   Barclay  (11  S.  &  R. 

103),  453. 
McTaggart  r.  Thompson  (14  Pa.  St. 

149)   89   128   140. 
Macka'y's'will',  Jn' re  (110  X.  Y.  611, 

18  X  E.  Rep.  433),  239-241. 
Macknet  v.  Maeknet  (24  X.  J.  Eq.  277), 

455. 
Macpherjon,  Matter  of  (1  Con.  (X.  Y.) 

224,  20  X.  Y.  St.  Rep.  868),  58-59. 
Main  v.  Ryder  (84  Pa.  217),  219,  220. 
Major  v.  "Williams  (3  Curt.  Ecc.  432), 

371,  374. 
Mandeville   v.   Parker  (31  X.  J.   Eq. 

242),  281. 
Mann  v.  Grove  (4  Ileisk.  403),  263. 
Manning  v.  Pippen  (11  So.  Rep.  56), 

418. 
Marriot  v.  Marriot  (1  Str.  666),  209. 
Marsh  v.  Marsh  (1  Sw.  &  Tr.  528), 
Marsh  v.  Tyrrell  (2  Haggard  84),  182, 

190   192. 
Marst'on  v.  Fox  (8  Ad.  &  Ell.  14),  318. 
Marston  v.  Judge  (79  Me.  25,  8  Atl. 

87),  308. 
Marston  v.  Xorton  (5  X.  II.  205),  8,  9. 
Marston  >:  Hoe  (8  Ad.  &  El.  14),  128. 
Martin's  Case  (L.  R.  1  P.  &  D.  380), 

407. 
Martin  r.  Kirby  (11  Gratt,  67),  457. 
Martin  r.   Wdtion  (1  Lee  130),  226. 
Martin  v.  Wright  (18  Wend.  460),  414. 
Marx  r.  McGlynn  (88  X.  Y.  357),  117. 
Mason  v.  Limbrey  (4  Burr.  2515),  :!55 
Masterman  '•.  Maberly  (2  Hagg.  235), 

:',s6. 
Masters,  Estate  of  (1  Civ.  Pr.  R.  (X. 

Y.)  459),  376. 
Masters  v.  Masters  (1   P.  Wins.  421), 

888 
Maxwell   v.    Hill  (89  Tenn.  584,  15  S. 

W.  Rep.  253),  258-264. 
Maxwell    r.    Maxwell    (:!    Mete.    iKv.l 

101),  402,  407. 
May  o.  Bradlee(127  Mass.  414),  98. 
Mayd,  In  the  (J Is  of  (6   1'.  I>.  17), 

lilT. 
Mayor,  etc.  >\  Bell  (12  Lea  157),  268. 
Meehan  '•.  H<>urk<>  (2  Bradf.  885  .  871, 
Meluish   d.   Milton  (L.  R.  :i  Ch.  I >i v 

27),  210 
Merriam's  Will  ni\  X    ^•   s.  788),     i 
Merrill  r.  Morton  (L.  R.  17  Chan.  Div. 

882),  462. 
Merrill   /'.    Roleton    (5   Redf.   220),  24, 

48  54, 
Menitt  p.  Clason  (12  John,  102  ;  s.  c. 

kiiI,  uinn ,  <  llason   '■.  I'l.'iih  \ ,  I  I  John, 

r-d.  227. 


Will 


TABLE   OF   CASES. 


Meurer,  Will  of  (44  Wis.  392),  287. 
Middleditch  r.  Williams  (45  N.  J.  Eq. 

?26,  17  A.  826),  16,  18,  24. 
Miles'  Will  (4  Dana's  Rep.  1),  225. 
Miller  ».  Phillips  (9  R.  I.  141),  315. 
Miller  o.  Shumaker  (42  La.  Ann.  398, 

2  So.  456),  429. 
Miller  v.  Travers  (8  Bing.  244),  465. 
Milligan,  Goods  of  (2  Roberts,   108), 

431. 
Miltenberger  v.  Miltenberger  (78  Mo. 

27),  384. 
Minkler  v.  Minkler  (14  Vt.  125),  366. 
Mitchell  8.  Mitchell  (16  Hun  97,  affi'd 

77  N.  Y.  596),  241,  247. 
Mole  c.  Thomas  (2  Wm.  Blackst.1043), 

83,  345,  346,  347,  348,  350-352. 
Monarque  v.  Monarque  (80  N.  Y.  320), 

446. 
Moore  v.  Dimond  (5  R.  I.  129),  454. 
Moore  v.  Kino;  (3  Curteis  243),  271. 
Moore  v.  Moore  (1  Phillim.  406),  371. 
Moore  i\  Moore  (23  Tex.  637),  5. 
Morey  v.   Sohier  (63  N.  H.  507,  3  A. 

636),  314. 
Morg&n  v.  Boys  (Tavlor,  Med.  Jurispr. 

2d(Amer.)ed.  555),  23. 
Morison  v.  Tumour  (18  Vesey  176), 

225 
Moritz  v.  Brough  (16  Serg.  &  R.  403), 

86   12^   139 
Morrell «'.  Morrell  (1  Hagg.  51),  432. 
Morrill  v.  Foster  (32  N.  H.  358),  172. 
Morrison,  In  the  Will  of  (N.  Y.   St. 

Rep.),  282. 
Morrow,  Appeal  of  (116  Pa.  St.  440,  9 

A.  660),  401-407. 
Morse  v.  Scott  (4  Dem.  507),  81. 
Morton,  In  the  Goods  of  (12  P.  D.  141), 

353 
Morton  v.  Onion  (45  Vt.  145),  315. 
Mory  v.  Mitchell  (18  Md.  241),  455. 
Mosser  v.  Mosser  (32  Ala.  551),  386. 
Mowrv  v.  Silber  (2  Brad.  133),  117. 
Mullen,  In  re  (5  Irish  Eq.  309),  14. 
Mundy  v.  Mundy  (15  N.  J.  Eq.  290), 

21 5;  241,  341-342. 
Murfett  r.  Smith  (12  P.  D.  116),  18. 
Minefield's  EsUla.)  (38  N.W.  170),  376. 
Murfitt  v.  Jessop  (94  111.  158),  442. 
Myers  v.  Vanderbelt  (84  Pa.  St.  510), 

383. 

Napfle's  Estate  (134  Penn.  St.  492,  19 

A  679),  14. 
Napier,  In  Goods  of  (1  Phillim.  83), 

437. 
Nash  v.  Hunt  (116  Mass.  237),  93. 
Neel  v.  Potter  (40  Pa.  St.  483),  122. 
Neil  v.  Neil  (1  Leigh  (Va.)  6),  27,  276, 

281. 


Nelson  v.  McDonald  (61  Hun  406),  437. 
Nelson  v.  McGitfert  (3  Barb.  Ch.  158), 

344,  372. 
Nelson,  Matter  of  (43  N.  Y.  St.  Rep. 

30),  288. 
Nelson   ».   The  Public  Administrator 

(2  Bradf.  210),  310-311. 
Nesbit  r.  Lockman  (34  N.  Y.  167),  96. 
Nesbit,  Matter  of  (5  Dem.  287),  377. 
Newberry  v.  Hinman  (49  Conn.  130), 

450. 
Newburgh  v.  Newburgh  (5  Mad.  Ch. 

364), 
Newton  v.  Clarke  (2  Curt.  320),  276, 

279. 
Newton    v.    Seaman's    Friend     Soc'y 

(130  Mass.  91),  426. 
Nexsen  v.  Nexsen  (2  Keyes  229),  206, 

Nichols  v.  Binns  (1  Sw.  &  Tr.  239),  17, 
09   54_58 

Nichols  b.  Chandler  (55  Ga.  369),  395. 
Nichols  v.   Nichols  (2  Phillim.   180), 

250,  252,  253-258,  333. 
Nickerson  v.  Buck  (12  Cush.  332),  215, 

239. 
Noble  v.  Phelps  (L.  R.  2  P.  &  D.  276; 

on  appeal,  L.  R.  7  Eng.  &  Ir.  Ap- 
peals 580),  8. 
Norman,  In  re  (72  la.  84,  33  N  W. 

Rep.  374),  92. 
Norton  v.  Bazett  (Deane  &  Sw.  259), 

279. 
Noyes  v.  Southworth  (55  Mich.  173), 

315. 
Nussear  v.  Arnold  (13  S.  &  R.  323), 

165. 
Nutt  v.  Norton  (142  Mass.  242),  317, 

318. 

Odenwaelder  v.  Schorr  (8  Mo.  App. 

458),  241. 
Oil   Works  v.  Bickford  (14  Lea  651), 

263. 
O'Neil,  Matter  of  (91  N.  Y.  516),  230. 
O'Neill  v.  Smith  (33  Md.  569),  430. 
Onions  v.  Tyrer  (1  P.  Wms.  343),  325, 

351    354  425 
Oniw'ay  v.  Sanders  (58  N.  H  132),  172. 
Orndorff  v.  Hummer  (12  B.  Mon.  (Ky.) 

619),  276,  281. 
Orser  v.  Orser  (24  N.  Y.  51),  286,  289. 
Osborn  v.  Cook  (11  Cush.  532),  242. 
Osgood  v.  Bliss  (141  Mass.  474,  6  N. 

E.  Rep.  527),  313. 
Osgood  v.  Breed  (12  Mass.  525),  8,  9. 
Osgood  v.   Manhattan   Co.  (3  Cowen 

612),  133,  165. 
Otto  r.  Doty  (61  la.  23,  15  N.  578),  24. 
Overton    v.    Bolton    (9    Heisk.    762), 

263. 


TABLE   OF   CASES. 


XIX 


Owens  v.  Bennett  (5  Harr.  (Del.)  367), 

232. 
Owens  d.  Owens  (100  X.  C.  240,  6  S. 

E.  794),  429. 
Owston,  In  the  Goods  of  (2  Sw.  &  Tr. 

401s  14.  30-33. 

Palmer  d.  Stephens  (1  Dem.  478),  219. 
Pancoast    p.    Graham  (15  N.    J.   Eq. 

294)   123. 
Parhtt  p.    Lawless  (L.  R.  2  P.  &  D. 

468),  96,  155. 
Parker   p.   Duncan  (62  L.  T.  (X.  S.) 

642),  9(3,  97. 
Parker,  Goods  of  (2  Sw.  &  Tr.  375), 

431. 
Parker,  In  re  (L.  R.  17  Chan  D.  265), 

462. 
Parker  v.   Merchant  (1  Phillim.  360), 

4  is. 
Parsell  P.  Stryker  (41  X.  Y.  480),  411- 

414. 
Parsons   >•.    Lanoe  (1  Ves.   Sen.  190), 

400,  4ii2.  405,  407. 
Parsons  P.  Parsons  (2  Greenl.  R.  298), 

85. 
Passmore  v.  Passmore  (1  Phillim.  218), 

386. 
Patten  p.  Tallman  (27  Maine  17),  307. 
Patten    p.   Poulton   (1    Sw.  &  Tr.  55), 

36  1-364. 
Patterson   p.  English  (71  Pa.  St.  454), 

886. 
Patterson  p.  Ilickey  (32  Ga.  156),  327, 

875. 
Patterson   >\  Patterson  (6  Serg.  &  R. 

56),  144. 
Patterson's  Will  (13  X.  Y.  Supp.  463). 

1 1. 
Patton  P.  Allison  (7  Humph.  332),  123, 

360,  261 
Paul  p.  Ball  (81  Tex.  10),  449. 
Pawtuckel  p.  Ballou  (15  R.  I.  58),  215. 

...■  p.  Payne  (18  Cal.  291),  877. 
Pearce  p.  Billings  (10  R.  I.  102),  150, 
Pech  p.  Cary  (27  N.  V.  9),  21,  22,  289, 

Peck  '•.  Halsey  (2  P.  Wma.  887),  465. 
Peck's  Will,  In  r<    (17  N.  Y.  Bupp. 

B  Rich.  198),  162. 
Pemberton  p.  Pemberton  (18  Ve  .  890), 

Pemberton's   Will    (4  Atl.   Rep    770, 

10  N   -I    Eq.  520),  L40. 
P    ....  Lynch    1 1  Johns  549),  12. 
tie  -    Murray  (6  Hill  468),  227. 

I  '    pOOE     /"   i  r    \S\    \      \  .  •       .'  17. 

P<  ii  in       Towery  (Ky.)  (88.  W.  Rep 

604  .  '•» 
Pi  rrott  p.  Perrotl  (14  East.  128),  B44 


Phelps  v.  Hartwell  (1  Mass.  71),  132, 

133,  161. 
Phila.  <fc  Trenton  R.R.  Co.  v.  Simpson 

(14  Pet.  448),  151. 
Phillips    v.    Anglesey  (7  Bro.    P.  C. 

(H.  L.  C.)  443),  310. 
Phillipps  v.  Chamberlaine  (4  Ves.  Jim. 

51), 
Phillips,  Matter  of  (98  N.  Y.  267),  214, 

90s   239 
Philip's  Will,  In  re  (19  X.  Y.  Supp.  13, 

46  X.  Y.  St.  Rep.  356),  369. 
Pickens  p.  Davis  (134  Mass.  252),  325, 

327,  370-37 1  i. 
Piercy,  In  Goods  of  (1  Roberts.  278), 

14, '278. 
Piper  p.  Moulton  (72  Me.  155),  292. 
Porter,  In  the  Goods  of  (L.  R.  2  P.  & 

•D.  22),  398,  407. 
Porter  p.  Dunn  (131  X.  Y.  314),  409. 
Post  el  al.   p.   .Mason  et  al.  (91  X.  Y. 

539),  97,  203-211,  260. 
Potter  v.  Jones  (Ore.)  (25  Pac.  R.  769, 

20  Ore.  239),  16,  24. 
Potter,  Matter  of  (33  X.  Y.  St.  Rep. 

936),' 237. 
Potts  v.  Felton  (70  Ind.  166),  275. 
Potts  /•.  House  (6  Ga.  324),  52. 
Powell's   Distr.   p.  Powell's  Legatees 

(30  Ala.  097),  380. 
Prather  p.  McClelland  (76  Tex.  574  (13 

S.  W.  Rep.)  543).  12. 
Price  p.  Powell  (3  II.  &  X.  311  i.  :i53. 
Pridsren  p.  Pridgen  (13  [red.L.  (X.  C.) 

259 1.  267. 
Prince   <.    Hazleton  (20  Johns.    502), 

429,  431,  43.Y 
Provenchere's  Appeal  (67  Penn.  St. 

466),  150. 
Provis  p.  Reed  (5  Bing.  435),  86,  127, 

1 10. 
Pryor  v.  Coggin  (17  Ga.  441),  325. 
Pvm    p.  Campbell  (6   Ell.  &    Bl.  370), 

252. 

Railroad  Co.  v.  Gurley  (12  Lea  46), 

268. 
Railway  Co,  p.  Poster  (88  Tenn.  671, 

18  B  W.  Rep.  694),  -,«i-:. 
Railway    Co.  P.  Hendricks    (88    Tenn. 

710.  18  s.  W.  Rep.  696),  268. 
Railroad  Co.   p.  Jones  (9  Heisk.  2 

-.'ii;; 
Railroad   Co.  p.  King  (6   Heisk    269), 

Railway  Co   p.  Wynn  (88  Tenn.  88 

II  8.  W.  Rep.  811),  268. 
Ralne,  In  the  Q U  ol   (1  Sw.  &  Tr. 

Ml.,  122. 
Rambler  p.  Tryon  <7  Serg.  &   Rawle 

90),  «9. 


XX 


TABLE   OF   CASES. 


Randall  o.  Beatty  (4  Stew.  (N.  J.)  643), 

373. 
Rankin  v.  Rankin  (6  T.  B.  Monr.  531), 

11. 
Ray  v.  Ex'rs  of  Calvert  (3  Strobh.  (S. 

Car.)  297),  27. 
Rav  r.  Hill  (3  Strobh.  (S.  Car.)  297), 

14,  27-28. 
Reaven,  In  Goods  of  (2  Curt.  369), 
Redfern  v.  Bryning  (L.  R.  6  Ch.  Div. 

133), 
Redmond  v.  Burroughs  (63  N.  C.  245), 

453. 
Reed  v.  Harris  (6  Ad.  &  El.  209),  346, 

349-350. 
Reed  8.  Hazleton  (37  Kan.  321, 15  Pac. 

Reporter  177),  385,  395,  397. 
Reed  a.  Woodward  (11  Phila.  541),  382. 
Reel  b.  Reel  (1  Hawks  247),  87,  89,  90, 

129 
Rees  v.  Rees  (L.  R.  3  P.  &  D.  84),  383, 

425. 
Reichenbacb  v.  Ruddacb  (18  Atl.  Rep. 

432,  127  Penn.   St.  564),  12,  16,  20, 

95,  308. 
Reid  v.  Borland  (14  Mass.  208),  370. 
Reid  8.  Harris  (33  E.  C.  L.  R.  60), 
Reynolds  v.    Reynolds  (1    Speers    L. 

253),  27. 
Rex  v.  Bettesworth  (2  Stra.  891),  8. 
Rhodes  v.  Weldy  (46  Ohio  St.  234,  20 

N.  E.  461),  319. 
Rich  v.  Cockell  (9  Ves.  369),  9. 
Rich  v.  Gilkey  (73  Me.  595),  309. 
Richardson  s.  Richardson  (35  Vt.  238), 

140,  292. 
Richmond,  Appeal  of  (59  Conn.  226), 

14. 
Ricketts®.  Turquand  (1  H.  L.  C.  472), 

460. 
Rider  v.  Miller  (86  N.  Y.  507),  93. 
Riggs  et  al.  v.  Palmer  et  al.  (115  N.  T. 

506,  22  N.  E.  188),  428,  429. 
Riggs  v.  Riggs  (135  Mass.  238),  279. 
Riley  v.  Riley  (36  Ala.  496),  380. 
Rivere  v.  Rivere  (3  Dessau.  Rep.  195), 

414. 
Robert  v.  Corning  (89  N.  Y.  225),  450. 
Roberts  v.  Roberts  (2  Sw.  &  Tr.  337, 
31  L.  J.  (P.  M.  &  A.)  46),  407,  423. 
Roberts  v.  Round  (3  Hagg.  548),  425. 
Roberts  v.  Trawick  (17  Ala.  55),  97, 

123. 
Robertson  v.  Smith  (L.  R.  2  P.  &  D. 

43),  395. 
Robinson  v.  Adams  (62  Maine  369), 

24,  52,  92. 
Robinson  v.  Allen  (11  Gratt.  789),  455. 
Robinson  v.  Brewster  (111.)  (30  N.  E. 
Rep.  683),  215,  281,  384,  385,  395- 
396.    • 


Robinson  v.  Hutchinson  (26  Vt.  38), 

128,  140. 
Robinson,  In  the  Goods  of  (L.  R.  2 

Prob.  171),  403. 
Robinson  v.  Raynor  (28  N.  Y.  494), 

414. 
Robinson   v.   Savage  (111.)  (15  N.  E. 

850),  292. 
Robnet  v.  Ashlock  (49  Mo.  171),  407. 
Roe  v.  Vingut  (117  N.  Y.  204,  22  N. 

E.  933),  445. 
Rogers  v.  Diamond  (13  Ark.  474),  265. 
Rogers  v.  Rogers  (N.  J.  Ch.)  (23  Atl. 

R  125),  441,  442. 
Rogers  v.  Rogers  (2  B.  Mon.  324),  161. 
Rohrer  v.  Stehman  (1  Watts  463),  218. 
Rollwagen  v.   Rollwagen  (63  N.   Y. 

504),  33. 
Roome  v.  Phillips  (24  N.  Y.  469),  447. 
Rose  v.  Quick  (30  Pa.  St.  225),  385. 
Ross  ».  Drake  (37  Penn.  St.  373),  457. 
Rudden  v.  McDonald  (1  Bradf.  352), 

275. 
Rudisill  v.  Rodes  (29  Gratt.  147),  374. 
Rue  High's  Appeal  (2  Dougl.  (Mich.) 

515),  386. 
Rugg  v.  Rugg  (83  N.   Y.   592),  246, 

282. 
Rutherford  v.  Rutherford  (1  Denio  33), 

239,  243. 
Rutland  v.  Gleaves  (1  Swan.  200),  260, 

261. 
Rymes  v.    Clarkson   (1   Phillim.    33), 

383. 

Sadler  v.  Sadler  (60  Miss.  251),  430. 
St.  Leger's  Appeal  (34  Conn.  434),  13. 
Salmon  Falls  Co.  v.  Goddard  (14  How. 

446),  219. 
Sanborn  v.  Flagler  (9  Allen  474),  219. 
Sartwell  v.  Wilcox  (20  Pa.  St.   117), 

148. 
Saunders  v.  Saunders  (6  N.  C.  522), 

363,  364. 
Savory,  Re  (15  Jurist  1042),  215. 
Scaife  v.  Emmons  (84  Ga.  619,  10  S. 

E.  1097),  430. 
Scammell  v.  Wilkinson  (2  East  552),  8. 
Schildnecht  v.  Rompf  (Ky.)  (4  S.  W. 

Rep.  235),  24. 
Schmidt  8.   Schmidt  (Minn.)  (50  N. 

W.  598),  95. 
Schultz   v.    Schultz   (33  N.  Y.    653), 

358-361. 
Scott   v.   Fink  (45  Mich.   241,  17  N. 

799),  372. 
Scruby  8.  Fordham  (1  Add.  74),  309. 
Seamen's  Friend  Soc'y  v.  Hopper  (33 

N.  Y.  619),  50,  52,  81. 
Sears  v.   Dillingham  (12  Mass.  358), 

292. 


TABLE   OF   CASES. 


XXI 


Sears  r.  Shafer  (2  Seld.  272),  192. 
Seebrock  v.  Fedawa  (46  N.  W.  Rep. 

650),  96. 
Sefton  v.  Hopwood  (1  F.  &  F.  578), 

101-102. 
Seiter  v.  Straub  (1  Dem.  (N.  Y.)  64),  6. 
Segrave  p.  Kirwan  (1  Beatty  157),  209, 

211. 
Selwin  r.  Bronne  (Cas.  temp.  Talbot 

240,  4  Bro.  P.  C.  179),  98. 
Semmes  v.  Semmes  (7  Har.  &  J.  (Md.) 

388),  353-351.. 
Severance  v.  Severance  (Mich.)  (52  N. 

W.  292),  95. 
Sewdl  p.  Slingluff  et  al.  (57  Md.  537), 

253,  385. 
Shailer  v.  Bumstead  (99  Mass.   112), 

123-135,  140,  166,  168,  170. 
Shakespeare  v.  Markham  (72  N.  Y. 

400;  B.  c.  10  Hun  311),  414. 
Sharp  v.  Hall  (86  Ala.  110,  5  So.  497), 

384. 
Bhaw  p.  White  (28  Ala.  637),  226. 
Sheldon's  Will  (16  N.  Y.  S.  454),  97. 
Shepherd  P.  Xabors  (6  Ala.  631),  391. 
Sherratl   p.  Mountford  (L.   R.  8  Ch. 

928),  463. 
Shires  p.  Glascock  (2  Salk.  68S),  278. 
Shottfl  p.  Poe  (47  Md   513),  454. 
Silverthorn,  In  re  (68  Wis.  372,  32  X. 

W.  Rep.  287),  13.  17. 
Silveus'  Ex'rs  v.   Porter  (74  Pa.   St. 

448),  148. 
Simmons  v.  Leonard   (Tenn.)  (18   S. 

W.  Rep.  880),  215. 
Simmons  r.  Simmons  (26  Barb.  68), 

872. 
Sims  ,.  Conger  (89  Miss.  234),  457. 
Sinclair  «.  Hone  (6  Ves.  608),  404,  405. 
Singleton  p.  Tomlinson  (L.  R.  3  App. 

Cas.  W4),  426. 
Sisters  of  Charity  p.  Kelly  (67  N.  Y. 

109),  280,  232. 
Slinn,  In  Goods  of  (15  P.  D.  156),  386, 

895. 
Small- v    v.    Small. -V   '70    Maine    545), 

297-29!). 
Smart,  In    the   Goods  of  (9  P.  D.  64), 

424. 
Sin.-  v.  8mee(5P.  D.  84),  18, 19. 
Smiley  p.   Qambill   (2   Head   (Tenn.) 

164),  825. 
Smith  p.  Burch  (92  N.  V.  828),  449. 

Smith  p,  I  (avis  (1  Grant's  ( 'a-.  (Penn  I 

158),  (49 

Smith  p,  Dolby  1 1  Harring.  850),  864 

Smith  r.  Dunwoody  I  L9  Ga.  387),   1 16, 

Smith  p.  Fellows  i 181  Mass.  80),  1 19 

Smith  p.  Penner  (1  Gall.  IT"  .  BO 

89,  in),  in. 

Smith  i  Han  (4  Barb.  88),  844 


Smith,  Matter  of  Will  of  (95  N.  Y. 

516),  97. 
Smith,  Matter  of  (39  N.  Y.  St.  Rep. 

698),  288. 
Smith  r.   Morgan  (2  Moody  &  Rob. 

257),  163. 
Smith  p.  Smith  (17  Gratt.  268).  446. 
Smith  v.  Tebbitt  (L.  R.  1  P.  &  D.  398), 

18,  19,  50. 
Smith's  Will  (6  Phila.  104),  431. 
Smith,  Will  of  (52  Wis.  543),  24. 
Snelling's  Will  (17  N.  Y.  Supp.  683), 

14. 
Snider  v.  Burks  (Ala.)  (4  So.  Rep.  225), 

24. 
Snvder  v.  Bull  (17  Penn.  St.  54),  293. 
Snyder  v.  Snyder  (45  K   W.  818,  77 

Wis.  95).  408. 
Society  v.  Price  (115  111.  623,  5  N.  E. 

126),  18. 
Sommers  v.  Railroad  Co.  (7  Lea  201), 

263. 
Soward  v.  Soward  (1  Duv.  126),  275. 
Sparhawk  p.Cloon  (125  Mass.  263),  455. 
Sparhawk  p.  Sparhawk  (10  Allen  155), 

298,  299,  300. 
Spencer  p.  Rogers  (cited  in  Armstrong 

v.  Armstrong,  29  Ala.  538),  226. 
Sperber  r.  Balster  (66  Ga.  317),  395. 
Sperling,  In  Goods  of  (3  Sw.  &  Tr. 

272),  267. 
Spratt  p.   Spratt  (76  Mich.  384,  43  N. 

W.  627),  12. 
Sprigge  v.  Sprite  (L.  R.  1  P.  &■  D. 

608),  330,  356-358. 
Stacey,  In  the  Goods  of  (Deane  6),  422. 
Stackhouse  v.  Horton  (15  N.  J.  Eq. 

202),  52. 
Staines  v.  Stewart  (2  Sw.  &  Tr.  320), 

327. 
Stanton  v.  Weatherwax  (16  Barb.  259), 

50,  52. 
Staples  /•.  Wellington  (58  Me.   153  ,  21. 
Starkey's  Appeal  (61  Conn.  199),  108 
Starretl  p.  Douglass  (2  Fates  16),  128. 
State  p.  Clarke  (8  Herring  (Del.)  557), 

6  7. 
State  ,-.   H,„l<rc  (50  X.   II.  510..   IT  ' 

Staser  p.  Hogan  1 120  In. I    807,  21  N". 
E.  911,  22  V  E.  990),  92,  218. 

Stat.-  /•.  Pike  (61  N.  II.  105),  98. 

Steadman    D    Stea.lman   |  Penn    I  (14  A. 

406),  212. 

Stephens  r.  Taprell   (2  Curl    458),  M9. 

Stevens  p.  Bagwell  (15  Ves.  189),  8. 
Stevens  v.  Stevens  i  L27  End.  560,  86  N. 
E   Rep.  1078),  16, 

Stevens    r.    Vaneleve    |  1    \\  ah.    ( '.    C. 

862),  86,  88,  1  W,  216. 

Stewart  v.  Mulholland  (88  Kv.  ih,  10 
S.  W.  Rep.  L25),  812,  313.  " 


XX11 


TABLE   OF   CASES. 


Stewart  o.  Powell  (Ky.)  (14  S.  W.  Rep. 

49G),  312-313. 
Stonehouse  v,  Evelyn  (3  P.  Wins.  254), 

225. 
Storm's  Will  (3  Bradf.  (N.  Y.)  327), 

377. 
Stouteuburdi  v.  Hopkins  (43  N.  J.  Eq. 

577,  12  Atl.  R.  689),  9,  12,  14,  95, 

282. 
Strauss  v.  Schmidt  (3  Phil.  397),  403. 
Strong,  Matter  of  (39  N.  Y.  St.  Rep. 

85°)   270—272 
Stubbs  v.  Houston  (33  Ala.  555),  92. 
Stuckey  v.  Stuckey  (I  Hill  Ch.  (S.  C.) 

309),  449. 
Stump   i\   Hughes  (5  Hayw.   (Tenn.) 

93),  258. 
Sturdivant  v.  Birchett  (10  Gratt.  (Va.) 

67),  269. 
Simden  v.  St.  Leonards  (1  P.  D.  154), 

325   375 
Sullivan  V.  Sullivan  (106  Mass.  475), 

292,  299-303. 
Sumner  ».  Crane  (Mass.)   (29  N.  E. 

1151),  420. 
Sutherland  r.  Shelton  (12  Heisk.  375), 

263. 
Swan  v.  Hammond  (138  Mass.  45),  317. 
Sweet  v.  Sweet  (1  Redf.  451),  342-344. 
Swift  v.  Wiley  (1  B.  Mon.  (Ky.)  144), 

267. 
Swinton  v.  Bailey  (L.  R.  1  Ex.  Div. 

110),  324. 
Sykes  v.  Sykes  (L.  R.  4  Eq.  200),  309. 

T.  B.,  Matter  of  (44  N.  Y.  St.  Rep. 

304),  437. 
Tagart  v.  Hooper  (1  Curt.  294),  309. 
Tallman's  Will   (Penn.)    (23  Atl.   R. 

986),  95. 
Tappenden  v.  Walsh  (1  Phillim.  352), 

9. 
Tarrant  v.  Ware  (25  N.  Y.  425),  239, 

287 
Tarver  v.  Tarver  (9  Pet.  174),  402. 
Tawney  v.  Long  (76  Penn.   106),  51, 

137,  141. 
Tayloe  v.  Mosher  (29  Md.  443),  450. 
Taylor,  In  the  Goods  of  (9  E.  L.  &  E. 

582,  15  Jurist  1090),  232. 
Taylor  v.  Meads  (4  De  G.,  J.  &  S. 

597),  9. 
Taylor  v.  Mitchell  (87  Penn.  St.  518), 

414-416. 
Taylor  v.  Tavlor  (1  Rich.  L.   (S.   C.) 

531),  291,  292,  293. 
Taylor  v.  Taylor  (2  Nott  &  McC.  482), 

373. 
Teele  v.   Hathaway  (129  Mass.    164), 

450. 
Temple  v.  Mead  (4  Vt.  535),  383. 


Terry  v.  Wiggins  (47  N.  Y.  512)  441. 
The  King  v.  Nueys  (1  W.  Bl.  416),  286. 
Thomas,  In  the  Goods  of  (1  Sw.  &  Tr. 

255),  290-291. 
Thompson  v.  Conner  (3  Brudf.  366), 

404. 
Thompson  v.  Hawks  (14  Fed.  R.  902), 

24. 
Thompson  v.  Seastedt  (6  T.  &  C.  78; 

aff'd  s'tb  nom.,  Thompson  v.  Stevens, 

62  N.  Y.  634),  246,  247. 
Thompson  v.  Thompson  (13  Ohio  St. 

356),  133,  166. 
Thompson  v.  Thompson  (21  Barb.  107), 

24. 
Thompson  v.  Young  (25  Md.  459),  453. 
Thorne,  In  the  Goods  of  (4  Sw.  &  Tr. 

36,  34  L.  J.  (P.  M.  &  A.)  131),  403, 

407. 
Thorncroft  v.  Lashmar  (2  Sw.  &  Tr. 

479),  386. 
Thornton,  In  the  Goods  of  (14  P.  D. 

82),  325,  328-329. 
Thurston  v.  Thurston  (6  R.   I.  299), 

456. 
Timewell  v.  Perkins  (2  Atk.  103),  441. 
Timon  v.  Claffy  (45  Barb.  438),  325. 
Titlow  v.  Titlow  (54  Penn.  St.  216),  17, 

133,  165. 
Todd  v.  Rennick  (13  Colo.  546,  22  P. 

898),  17. 
Tod  v.  Winchelsea  (2  Carr.  &  P.  488), 

276. 
Todd's  Will  (2  W.  &  S.  145),  405,  406, 

407. 
Toms  v.  Williams  (41  Mich.  552),  442, 

445. 
Tonnele  v.  Hall  (4  N.  Y.  140),  232. 
Towers  v.  Hogan  (23  L.  R.  (Ir.)  53), 

386. 
Towle  v.  Swasey  (106  Mass.  100),  468. 
Towne  v.  Weston  (132  Mass.  513),  454. 
Townsend  v.  Bogart  (5  Redf.  93),  15, 

34-38. 
Townsend  v.  Townsend  (7  Gill.  (Md.) 

10),  21. 
Trevelyan  v.  Trevelyan  (1  Phill.  149), 

252,  330-334,  367. 
Tribe  v.  Tribe  (1  Roberts.  775),  277. 
Trimnel,  In  Goods  of  (11  Jur.  (N.  S.) 

248),  277. 
Trustees  v.   Calhoun  (25  N.  Y.  422), 

246. 
Trustees  v.  Kellogg  (16  N.  Y.  83),  442. 
Tucker  v.  Bishop  (16  N.  Y.  404),  454. 
Tuit  v.   Smith  (20  Atl.  Rep.  579,  137 

Penn.  St.  35),  418-420. 
Tuller,  Re  (79  111.  99),  315. 
Tullett  v.  Armstrong  (13  Beav.  1),  9. 
Turner  v.  Cheesman  (15  N.  J.  Eq.  243), 

92. 


TABLE   OF   CASES. 


XX IH 


Turner  v.  Clcrason  (15  N.  J.  Eq.  243), 

154. 
Turner  v.  Cook  (36  Ind.  129),  242. 
Turner  v.  Scott  (51  Pa.  St.  126),  395. 
Tyler  D.  Gardiner  (35  N.  Y.  559),  96, 

97,  112,  173-202,  213. 

United  States  v.  Grusk  (5  Mason  290), 

433. 
United    States    r.    Robinson    (Mason 

307),  433. 
United  States  c.Willberger  (5  Wheaton 

76),  433. 
Upchurch  c.   Upchurch  (16  B.  Mon. 

(Ky.)  102),  269,  272. 
Urie  v.  Irvine  (21  Penn.  St,  312),  453. 
l'-ilton  v.  L'silton  (3  Md.  Ch.  36),  447. 
Usticke  v.  Bawden  (2  Add.  Ecc.  116), 

371,  375. 

Van  Alst  r.  Hunter  (5  Johns.  Ch.  148), 

14. 
Van  Alstvne  v.  Van  Alstyne  (28  N.  Y. 

875),  876. 
Vance  v.  Upson  (66  Tex.  476,  1  S.  W. 

179),  18. 
Van  Cortlandt  v.  Kip  (1  Hill  590,  s.  c. 

7  Bill  346),  376. 
Vanderpoel    v.    Van   Valkeuburgh  (6 

X.  V.  190),  209. 
Van  Deuzen   v.  Gordon  (39  Vt.  Ill), 

130. 
Van  Guysling  v.  Van  Kuren  (35  N.  Y. 

70),  18. 
Van  Nostrand  v   Moore  (52  N.  Y.  12), 

442. 
Varrel]  r.  Wendell  (20  N.  H.  435),  453, 

455. 
N'aii-lian  o.  Burford  (3  Bradf. 78), 215. 
Vedder,  Matin- of  (6  Dem.  92),  76-78, 

82 
Vermilyea  v.  Palmer  (52  N.  Y.  471), 

208 
Vernam  v.  Spencer  (8  Bradf.  16),  275. 
Vernon  v.  Kirk  (80  P..  !18,  219. 

Vernon  v.  Vernon  (58  V  V,  851),  442. 
V  rplanck'a  Will  (91  X    V.  489),  154 
Vincent  i    NTi  ivhou  e  (88  X.  V.  505), 

454. 
Voorhi  ,  Matter  ot  (125  X.  V.  76.",,  26 

X.  I..  985),  249. 
Vrooman  v.  Powers  (Ohio)  <2l  X.  I'.. 

267,  4  7  Ohio  St.  191),  292. 

Wainwright'a  Appeal  (89  Pa.  St.  220), 
i  19. 

Waite  0.   Kn  bl       15    Minn.  861,  47  X. 

W    Rep.  1069    216 
Walker  d.  8keene  (8  Read  I 
w.iii.. ,        Valki  r(67  Ml      529,  7  Bo 

Rep.  191  .  276 


Wallace  r.  Harris  (32  Mich.  393),  97. 
Wallaces.  Wallace  (23  N.  H.  149), 467. 
Wallach  v.  Van  Riswick  (92  U.  S.  202), 

11. 
Walpole  v.  Orford  (3  Ves.  402),  417. 
Walsh  v.  Ryan  (1  Bradf.  433),  53. 
Walters  v.  Crutcher  (15  B.  Monr.  10), 

454. 
Walters'  Will,  In  re  (The  Reporter, 

Vol.  XXI.  95),  387-389. 
Ward's  Estate  (70  Wis.  251,  35  N.  W. 

R.  731),  313,  314. 
Ward,  In  the  Goods  of  (4  Hagg.  179), 

404. 
Ward  >-.  Tompkins  (30  N.  J.  Eq.  3), 

454. 
Ward  v.  Ward  (105  N.  Y.  68, 11  N.  E. 

373),  441. 
\\  are  v.  Richardson  (3  Md.  508),  455. 
Ware  o.  Ware  (8  Greenl.  42),  132. 
Warh?g».  Waring  (6  Moore  P.  C.  341), 

18,  335. 
Warner  r.  Bates  (98  Mass.  274),  456. 
Warner  n.  Beach  (4Gray  162),  321-324. 
Warren  v.  Baxter  (48  Maine  193),  297, 

306-308. 
Warren  v.  Warren  (2  R.  I.  133),  431. 
Warwick  v.  Warwick  (86  Va.  596,  10 

S.  E.  843),  226. 
Waterman  o.  Hawkins  et  als.  (63  Me. 

156),  319-321. 
Waterman  r.  Whitney  (11  N.  Y.  157), 

82-91,  117,  128,  140,  152,  328. 
Waters  v.  Cullen  (2  Bradf.  354),  51. 
Watterson   v.    Watterson  (1  Bead  2), 

260,  261,  262,  263. 
Webb  v.  Jones  (36  N.  J.  Eq.  163),  314, 

315. 
Webster  v.  Wiera  (51  Conn.  569),  441. 
Weeks  >■.  MeBeth  (14  Ala.  474),  366. 
Weems  r.  Weems  (19  Md.  334),  92. 
Weils  Will  (16  X.  V.  St.  Rep.  It,  81. 
Weir  v.  Fitzgerald  (2  Bradf.  42),  15. 
Welsch  /'.  Belleville,  etc.  Bank(94Ill. 

191),  441. 
Welch    .  Phillip*  il  Moore  P.  C.  2!)'.n. 

856,  363,  871,  875. 
Welsh  d    (rater  (82  X.  .!.    Eq.  177). 

158. 
Wellingtons.  Apthorp  (145  Mass.  69, 

L8  N.  E.  L0),  418. 
Wellington   v.    Wellington  (4  Burr  at 

.  i),  818,  108. 
Wells  ».  Wells  (L.  R.  L8  Eq  504),  162 
\\  est  v.  Weal  (8  Rand  (\  >  9. 

Weston  v.  Myers  (88  III.  182),  219. 
We  ton,  In  re  (L    R.  I  P.  &   D.  688), 

. 
Wc  turn,  Matter  of  (60  Hua  298  .  97. 
Wetmore  v.   Parker  (52   X.   V.  450), 

809,  Hi. 


XXIV 


TABLE   OF   CASES. 


Wetter  r.  Walker  (62  Ga.  142),  445. 
Whetatine  v.  Wilson  (104  N.  C.  385, 

10  S.  E.  471),  409. 
White  v.  Casten  (1  Jones  L.  (N.  Car.) 

197),  344-348. 
White  v.  Driver  (1  Phill.  84),  16,  17, 

60-62. 
White  o.  Repton  (3  Curt.  818),  431. 
White  v.  Starr  (47  N.  J.  Eq.  244,  20 

A.  875),  14. 
White  v.  Trustees  of  British  Museum 

(6  Bing.  310),  239. 
White,  In  the  Goods  of  (2  Notes  of 

Cases  461),  271. 
White,  Will   of  (25  N.  J.  Eq.  501), 

353. 
White's  Will  (121  N.  Y.  406,  24  N.  E. 

935),  18. 
Whitely  v.  King  (10  Jur.  (N.  S.)  1079), 

375. 
Whitney  v.  Ferris  (10  Johns.  66),  165. 
Wigg  v.  Wigg  (1  Ath.  382),  451.. 
Wilbur  r.  Wilbur  (129  111.  392,  21  N. 

E.  1076), 
Wilcox  v.  Wilcox  (13  All.  252),  468. 
Williams  v.  Gushing  (34  Maine  370), 

321. 
Williams  v.  McCall(12  Conn.  328).  455. 
Williams  v.  Tolbert  (66  Ga.  127),  395. 
Williams  v.  Tyley  (Johns.  (Eng.)  530), 

353 
Williams'  Will  (15  K  Y.  Supp.  828), 

215 
Williamson  v.    Nabers  (14  Ga.  286), 

123   163 
Willis  v.  Mott  (36  N.  Y.  486),  241. 


Wilson  v.  Mitchell  (101  Penn.  St.  495), 

14,  148. 
Wilson,  In  the  Goods  of  (L.  R.  1  P.  & 

D.  269),  274^275. 
Wilson  v.   Wilson  (3    Phillim.    543), 

371. 
Windham  v.  Chetwynd  (1  Burr.  414 ; 

s.  c.  1  W.  Bl.  95),  301. 
Wineland,    Appeal   of  (Pa.)  (12  Atl. 

Rep.  301,  118  Penn.  St.  37),  230. 
Winn,  In  the  Goods  of  (2  Sw.  &  Tr. 

147),  398-399,  400,  423. 
Winslow  v.  Kimball  (25  Me.  Rep.  493), 

300,  305-306. 
Winter  v.  Perratt  (9  Clark  &  F.  688), 

465. 
Wisener  v.  Maupin  (2  Baxt.  342),  260. 
Wood  v.  McGuire  (15  Ga.  205),  454. 
Wood    v.    Wood    (L.   R.   1  P.  &  D. 

309),  371. 
Wood,  Matter  of  (36  Cal.  75),  385,  386. 
Woodward,  In  Goods  of  (L.  R.  2  P.  & 

D.  206),  324. 
Wooldridge  v.  Hancock  (Tex.)  (6   S. 

W.  818),  430. 
Wyman  r.  Symmes  (10  Allen  153),  300. 
Wynne  e.  Hawkins  (1  Bro.  C.  C.  179), 

456. 

Yates  v.  Cole  (1  Jones'  Eq.  110). 
Youndt  v.  Youndt  (3  Grant  140),  328. 
Younger  v.  Duffle  (94  N.  Y.  535),  230, 
236. 

Zeisweiss  v.  James  (63  Penn.  St.  463), 
428. 


THE  LAW  OF  WILLS. 


xxv 


THE  LAW  OF  WILLS. 


INTRODUCTION. 


The  right  to  bequeath  personal  property  by  will  has  existed 
from  the  earliest  days  of  our  law.  For  a  long  time,  however, 
the  wife  and  children  of  a  testator  were  entitled  to  a  portion  of 
his  personal  property,  and  it  was  only  to  the  balance  that  his  tes- 
tamentary power  applied,  subject  to  certain  claims  of  his  lord  and 
the  church.  By  slow  degrees  these  restrictions  were  removed,  and 
at  last  the  testator  was  left  free  to  bequeath  all  his  personal  prop- 
erty according  to  his  own  will.1 

As  to  real  estate,  the  owner  had,  before  the  Conquest,  full  power 
to  devise  his  land.  With  the  introduction,  however,  of  the  feudal 
system,  this  power  of  course  disappeared.  It  was  indirectly  re- 
vived, after  a  time,  by  various  devices  which  enabled  the  owner 
of  lands  to  direct  the  disposition  of  them  after  his  death.  And  by 
the  statute  of  32  lien.  VIII.,  ch.  1,  explained  by  that  of  34  Hen. 
VIII.,  ch.  5,  and  known  as  the  Statute  of  Wills,  power  of  devising 
land  by  will  in  writing  was  to  a  large  extent  bestowed  anew  upon 
all    peps,, us   seised    in   fee-simple    (except    married  women,  infants, 

idiots,  and  persons  of  oon-sane  memory).     And  as  a  result  of  sub- 
1 1 lent  statutes  the  removal  of  the  old  //i  m  ral  restrictions  has  been 

made  complete.  (  >wing  to  the  obvious  necessity  of  prescribing  a  de- 
tailed method  of  executing  wills,  and  affording  proper  means  of 
proving  their  execution,  i,  was  provided  by  the  Statute  of  Frauds, 
kj'.t  Car.  [I.,  ch.  3,  that  all  devises  of  lands  and  tenements  should  not 
only  be  in  writing,  but  Bigned  by  the  testator,  or  some  other  person 
in  his  presence,  and  by  bis  express  direction,  and  be  subscribed  ip 
his  presence  by  three  or  four  credible  witnesses." 
The  Statute  of  Frauds  did  not  apply  to  wills  of  personal  prop 

'SBlackst.  Comm.  491   198.  3  Blackst.  ('mum  :;;i  ::;■•,. 


2  INTRODUCTION. 

erty,  but  by  the  present  English  Statute  of  "Wills,  1  Vict.,  ch.  26, 
the  rules  concerning  execution  of  wills  of  real  and  of  personal 
property  were  assimilated.  This  statute  provides  that  "  no  will 
shall  be  valid  unless  it  shall  be  in  writing  and  executed  in  manner 
hereinafter  mentioned ;  (that  is  to  say),  it  shall  be  signed  at  the 
foot  or  end  thereof  by  the  testator,  or  by  some  other  person  in  his 
presence  and  by  his  direction ;  and  such  signature  shall  be  made 
or  acknowledged  by  the  testator  in  the  presence  of  two  or  more 
witnesses  present  at  the  same  time,  and  such  witnesses  shall  attest 
and  shall  subscribe  the  will  in  the  presence  of  the  testator,  but  no 
form  of  attestation  shall  be  necessary." 

In  this  country  the  various  States  have  enacted  Statutes  regulat- 
ing the  power  and  the  method  of  making  wills.  These  statutes 
vary  in  their  requirements,  and  in  any  given  case  the  local  con- 
trolling law  must  be  consulted. 


Nowadays,  as  a  general  proposition,  and  subject  to  certain  safe- 
guards and  restrictions,  every  one  has  the  right  to  make  a  will.  But 
in  order  to  understand  and  apply  this  principle  correctly,  it  is  nec- 
essary in  the  first  place  to  determine  precisely  what  is  here  meant 
by  the  word  "  will."  It  is  very  important  just  here  to  notice  that, 
as  used  in  the  law,  it  has  two  distinct  meanings.  In  one  sense,  it 
refers  to  something  in  the  testator's  own  mind,  his  wish,  his  deter- 
mination, his  "  will "  concerning  the  disposal  of  his  property  after 
death.  In  the  other  sense,  it  refers  to  the  formal  statement  in 
which  he  expresses  that  wish.  Thus  the  testator's  own  wish,  and 
the  due  statement  thereof,  are  both  called  his  "  will."  Now  the 
critical  importance  of  the  distinction  is  this :  that  the  formal  state- 
ment called  a  "  will "  derives  its  only  intrinsic  value  from  the  fact 
that  the  other  will — namely,  the  determination  in  the  mind  of  the 
testator — was  back  of  it  and  is  embodied  in  it.  Unless  this  is  so, 
it  is  a  mere  form  of  words,  of  no  force  or  value  whatever — it  is 
not  the  testator's  will  at  all.  The  manner  in  which  this  distinc- 
tion and  this  proposition  may  be  applied  to  illuminate  the  dark 
corners,  and  solve  the  difficult  problems  of  the  Law  of  Wills,  will 
be  further  referred  to  in  a  moment,  and  will  be  constantly  illus- 
trated throughout  this  book. 


INTRODUCTION.  3 

In  order  to  make  it  as  certain  as  possible  that  the  real  wills  of 
testators  shall  be  enforced,  and  that  instruments  that  only  purport 
to  be,  but  really  are  not  such,  shall  be  disapproved,  the  law  has 
thrown  certain  safeguards  around  the  general  principle  with  which 
we  started.  These  are  sometimes  spoken  of  as  if  they  were  ex- 
ceptions to  the  general  principle  that  everybody  has  the  right  to 
make  a  will ;  but,  apart  from  certain  incidental  or  minor  features 
which  will  be  mentioned  hereafter,  and  one  or  two  exceptions 
which  have  faded  or  are  now  fading  away,  nothing  could  be  a 
greater  mistake.  Thus,  the  law  generally  provides  that  the  testa- 
tor must  be  of  "sound  mind."  This  is  not  an  exception  to  the 
general  principle  that  every  one  may  make  a  will,  for  that  rule 
perforce  only  applies  to  persons  capable  of  having  wills  or  purposes 
of  their  own  to  be  expressed.  As  a  testamentary  instrument,  to  be 
valid,  most  stand  for  the  real  purpose  of  the  testator,  it  is  no  ex- 
ception to  the  rule  to  go  on  to  say  that  it  only  applies  to  him  who 
is  capable  of  having  a  real  purpose.  If  he  has  not  a  sound  mind 
he  cannot  fairly  be  said  to  have  a  will  suitable  to  dispose  of  his 
property,  and  Juiving  no  will,  he  cannot  make  a  will. 

So,  for  the  same  purpose,  the  law  requires  certain  formalities 
in  the  execution  of  wills.  These  are  intended  solely  for  the  same 
purpose,  namely,  to  insure  a  careful,  accurate,  and  genuine  state- 
ment of  the  testator's  wish  or  will.  These  and  other  requirements 
and  safeguards  of  a  similar  nature,  and  also  one  or  two  exceptions 
to  the  general  rule,  will  be  considered  more  fully  hereafter.' 

Although  the  statutes  conferring  the  right,  and  prescribing  the 
method,  of  making  wills  are  usually  simple  and  brief,  yet  a  great 
body  of  [aw  has  grown  up,  consisting  of  decisions  in  eases  where 
it  was  claimed  that  the  instrument  in  question  either  did  not  in  fact 
represent,  or  was  not  duly  proved  to  represent,  the  will  of  a  com- 
petenl  testator  The  grounds  on  which  these  claims  have  rested 
vary  greatly  among  themselves  in  their  details,  but  they  may  he 
grouped  in  a  few  general  classes.  The  whole  Law  of  Wills  may 
besl  be  considered  under  .-i\  main  heads,  I.  Testamentary  Inca- 
pacity (or  the  question  whether  the  particular  testator  fell  shorl  of 
the  general  statutory  measure  of  persons  competenl   t"  have  and 


9ee  Infancy,  p  erture,  i>  7;  Alienage,  t».  10;  Crime,  p.  i<»;  Mental 

Unsoundness,  \>.  12. 


4  INTRODUCTION. 

to  express  their  own  will) ;  2.  Undue  Influence  or  Restraint  (or 
the  question  whether  the  testator  may  have  been  crowded  into  ex- 
pressing the  will  of  somebody  else  instead  of  his  own) ;  3.  Execu- 
tion, Revocation,  and  Republication  (or  the  question,  first,  whether 
the  statutory  formalities  prescribed  in  order  to  insure  solemnity, 
precision,  and  certainty  in  setting  forth  testator's  wishes,  have  been 
observed  ;  secondly,  whether  he  subsequently  reversed  his  wish 
and  will,  and  duly  revoked  the  former  expression  of  it;  and 
thirdly,  whether  he  has  duly  republished  any  former  testamentary 
instrument) ;  4.  The  instrument  itself,  its  make-up,  its  nature, 
scope,  and  various  kinds  and  forms ;  5.  Construction  (or  the 
determination,  according  to  certain  principles— some  natural  and 
some  more  or  less  arbitrary — of  the  exact  wishes  and  intentions 
which  testator  has  in  fact  expressed) ;  6.  Probate  (or  the  proceed- 
ings in  court  to  establish  the  will  as  indeed  the  real  and  duly  ex- 
pressed and  authenticated  wish  of  a  competent  testator).  This 
latter  subject,  however,  belongs  partly  under  the  head  of  Practice 
and  partly  under  Evidence.  The  leading  rules  of  evidence  apply- 
ing peculiarly  to  the  proof  of  wills  are,  however,  discussed  and 
illustrated  in  this  book. 


CHAPTER  I. 

TESTAMENTARY  INCAPACITY. 

I. — Infancy. 

II. — Coverture. 
III. — Alienage. 
IV. — Crime. 

V. — Mental  unsoundness. 


I.  INFANCY. 


It  was  formerly  the  law  in  England  that  a  will  of  personal  prop- 
erty might  be  made  by  a  male  infant  at  the  age  of  fourteen,  and  by 
a  female  infant  at  the  age  of  twelve.1 

The  right  to  make  a  will  of  freehold  estates  in  land  did  not  ex- 
ist, after  the  Conquest,  even  in  adults,  until  conferred  by  32  Hen. 
VllL,  eh.  1,  explained  by  34  Hen.  VIII.,  ch.  5,"  which  also  fixed 
the  age  at  which  the  right  should  begin,  at  twenty-one  years.' 
Subsequently,  the  statute  1  Vict.,  eh.  2*i,  prescribed  the  age  of 
twenty-one,  in  all  cases,  whether  the  property  disposed  of  was  real 
or  personal.  Ami  bo  the  law  of  England  now  stands.  Many  of 
our  States,  a-  Massachusetts,  have  adopted  the  same  rule.'  Other 
States  have  adopted  other  rules;'  in  some,  as  Connecticut,*  an 
earlier  age  is  named;  while  in  others,  as  New  York,  the  English 

'1  Blackal  ' '< -in mi .  468 ;  Arnold  v.  Earle,  2  Lee's  Reports  by  Phillimore, 
529  where  in  L7S5  a  boy  of  sixteen  made  a  will  in  favor  of  bis  schoolmaster 
which  was  sustained. 

Blackst.  Comm.  874,  :'.:.).  31  Jarm.  on  Wills,  83. 

■  M  .      Pub   -i    tit.  »ec.  1. 

■  Bui  whatever  age  may  be  Bxed,  an  Infant  under  thai  age  cannol  make  a 
will.     Moore  v.  Moore,  .'::  Tex.  •;:::. 

•Conn.  <;.  s.,  tec.  587. 


6  TESTAMENTARY   INCAPACITY. 

rule  is  followed  in  wills  of  realty,1  while  in  those  of  personalty  * 
the  age  is  fixed  at  eighteen  in  males  and  sixteen  in  females.  It  is 
very  important  here  to  notice  that  this  exclusion  of  infants  is  not 
a  mere  arbitrary  rule.  The  unfitness  of  children  to  deal  with  mat- 
ters of  such  importance  is  a  fact  of  nature.  The  law,  in  the  inter-' 
est  of  convenience  and  certainty,  merely  fixes  the  particular  point 
at  which  the  disability  shall  cease  and  the  right  shall  begin. 

ON  WHAT  DAY  AN  INFANT   COMES  OF  AGE. 
Anonymous. 

Mien.  3  Ann.  B.  R. 
(1  Salk.  44.) 

"  It  has  been  adjudged  3  that  if  one  be  born  the  first  of  Febru- 
uary,  at  eleven  at  night,  and  the  last  of  January  in  the  twenty-first 
year  of  his  age,  at  one  of  the  clock  in  the  morning,  he  makes  his 
will,  of  lands,  and  dies,  it  is  a  good  will,  for  he  was  then  of  age. 
Per  Holt,  C.  J. 

The  State  v.  Clarke. 

(1840.     3  Harring.  (Del.)  557.) 

Kent,  October  term. 

The  defendant  was  presented  by  the  grand  jury  for  illegal 
voting  at  the  late  inspector's  election.  The  presentment  set  forth 
these  facts,  to  wit :  that  the  defendant  was  born  on  the  7th  of  Oc- 
tober, a.d.  1819,  and  voted  at  the  election  held  on  the  6th  of  Oc- 
tober, 1840. 

In  his  behalf  a  motion  was  now  made  to  quash  the  presentment, 
on  the  ground  that  it  appeared  from  the  face  of  it  that  the  defend- 
ant was  of  full  age  at  the  time  he  voted,  and  was,  therefore,  not 
guilty. 

Mr.  Clayton,  for  the  defendant,  cited  1  Black.  Com.  497. 

1  2  R.  8.  56,  sec.  1,  as  amended  L.  1867,  ch.  782,  sec.  3. 

2  2  R.  S.  60,  sec.  21,  as  amended  L.  1867,  ch.  782,  sec.  4.  But  when  a  will 
is  made  by  a  minor  the  courts  will  examine  the  circumstances  with  more  than 
usual  care  to  see  that  it  really  represents  the  deliberate  and  intelligent  wish  of 
the  testator,  and,  if  this  is  doubtful,  will  refuse  probate.  Seiter  v.  Straub,  1 
Dem.  (N.  Y.)  64. 

3  In  Herbert  v.  Tarball,  1  Keb.  589. 


COVERTURE.  7 

By  the  Court. 

Bayard,  Chief  Justice  (after  stating  the  constitutional  pro- 
vision which  employs  the  phrase  "of  the  age  of  twenty-one 
years").  To  ascertain  when  a  man  is  legally  of  the  age  of 
twenty-one  years,  we  must  have  reference  to  the  common  law, 
and  those  legal  decisions  which  from  time  immemorial  have  set- 
tied  this  matter,  in  reference  to  all  the  important  affairs  of  life. 
AVhen  can  a  person  make  a  valid  will ;  when  can  he  execute  a  deed 
for  land  ;  when  make  any  contract  or  do  any  act  which  a  man  may 
do,  and  an  infant,  that  is,  a  person  under  the  age  of  twenty-one 
years,  cannot  do  ?  On  this  question  the  law  is  well  settled  ;  it  ad- 
mits of  no  doubt.  A  person  is  "  of  the  age  of  twenty-one  years  " 
the  day  before  the  twenty-first  anniversary  of  his  birthday.  It  is 
not  necessary  that  he  shall  have  entered  upon  his  birthday,  or  he 
would  be  more  than  twenty-one  years  old.  He  is,  therefore,  of 
age  the  day  before  the  anniversary  of  his  birth ;  and  as  the  law 
takes  no  notice  of  fractions  of  a  day,  he  is  necessarily  of  age  the 
whole  of  the  day  before  his  twenty-first  birthday ;  and  upon  any 
and  every  moment  of  that  day  may  do  any  act  which  any  man 
may  lawfully  do.  (1  Chit.  Gen.  Prac.  766).  "It  is  to  be  ob- 
served, that  a  person  becomes  of  age  on  the  first  instant  of  the 
last  .day  of  the  twenty-first  year  next  before  the  anniversary  of  his 
birth  ;  thus,  if  a  person  were  born  at  any  hour  of  the  1st  of  Janu- 
ary, A.D.  L801  (even  a  few  minutes  before  12  o'clock  of  the  night 
of  that  day),  he  would  be  of  full  age  at  the  first  instant  of  the  31st 
of  December,  a.d.  L82JL,  although  nearly  forty-eight  hours  before 
he  had  actually  attained  the  full  age  of  twenty-one,  according  to 
yeare,  days.  hour-,  and  minutes;   because  there  is  not  in  law  in  this 

respect  any  fraction  of  ;i  day  ;  and  it  is  the  Bame  whether  a  thing 
is  don"  upon  one  moment  of  the  day  or  another." 
On   the  face,  then,  of   this  presentment,  it  appears  that    Mr. 

Clarke  was   entitled  to  vote   on    the   6th  of   October,  being  on  that 

day  of  the  age  of  twenty  one  years :  and  the  presentment,  Bhowing 
no  offence,  musl  !»■  quashed. 

II.  COVERTURE. 
A    ;i  general  proposition, a  married  woman  could  not.  under  the 

common  law.  make  a  will  of  either  real  or  personal  property.1  and 

' 2 Blackat.  Comm    fa-.  Bran  bj  v   Haim   ,  t  Lee'    ttep.  bj  Phillim.  120 


8  TESTAMENTARY   INCAPACITY. 

even  when  the  right  to  devise  freehold  estates  was  created  by  the 
acts  of  32  and  34  Hen.  VIII.,  married  women  were  excluded  from 
their  operation.  The  underlying  reason  for  this  disability  was  not, 
as  in  the  case  of  infancy,  merely  the  actual  or  supposed  incapacity 
of  the  testatrix,  but — at  least  in  large  part — the  theoretical  merger 
of  the  married  woman's  identity  and  interests  in  those  of  the  hus- 
band. This  being  the  reason,  there  were  four  classes  of  cases  where 
the  reason  for  the  rule  did  not  apply,  and  where,  consequently,  the 
right  to  make  a  will  existed. 

1 .  She  might  make  a  valid  will  of  personal  property  if  her  hus- 
band gave  his  consent *  to  the  very  instrument  in  question,2  with 
knowledge  of  its  contents,3  and  did  not  revoke  his  consent  before 
it  was  actually  probated  ;4  and  survived  the  wife.6 

2.  So  if  she  was  executrix  under  the  will  of  a  testator,  she  might, 
in  her  capacity  of  executrix,  make  a  will  and  appoint  an  executor 
for  the  purpose  of  continuing  the  representation  of  the  original 
testator.6 


1  2  Blackst.  Coram.  498;  Fisher  v.  Kimball,  17  Vt.  323. 

As  to  real  property,  a  married  woman  could,  at  the  common  law,  with  the 
concurrence  of  her  husband,  by  means  of  a  fine  (for  a  statement  of  the  nature 
and  effect  of  a  fine— now  abolished  in  England  and  not  used  in  this  country — see 
2  Blackst.  Comm.  348,  et  seq.),  transfer  title  to  another,  as  trustee,  reserving  the 
power  to  appoint  by  will  the  disposition  that  should  be  made  of  it  by  the  trus- 
tee. In  this  sense,  she  could,  so  to  speak,  make  a  will  of  lands  with  her  hus- 
band's consent.  Dillon  v.  Grace,  2  Sch.  &  Lef.  456  (463-4);  Opinion  of  Jack- 
son, J.,  in  Osgood  v.  Breed,  12  Mass.  525  (531-2);  Opinion  of  Chancellor  Kent, 
in  Bradish  v.  Gibbs,  3  Johns.  Ch.  523  (539,  540,  and  authorities  cited  I. 

But  properly  speaking,  she  could  not  make  a  will  of  land  even  with  the  hus- 
band's consent.  Osgood  v.  Breed,  12  Mass.  525,  where  the  reasons  of  this  dis- 
tinction between  real  and  personal  property  are  clearly  explained.  Marston  v. 
Norton,  5  N.  El'.  205. 

2  Rex  v.  Bettesworth,  2  Stra.  891;  Cutter  v.  Butler,  25  N.  H.  343. 

3  Willock  v.  Noble,  L.  R.  7  Eng.  &  Ir.  Appeals  (H.  L.)  580. 

4  Brook  v.  Turner,  2  Mod.  170.  But  if  he  once  consented  to  the  will,  either 
expressly  or  by  implication,  after  the  wife's  death,  he  could  not  revoke. 
Id. 

5  1  Redf.  on  Wills,  25.  See  also  Noble  v.  Phelps,  L.  R.  2  P.  &  D.  276  ;  on 
appeal,  L.  R.  7  Eng.  &  Ir.  Appeals,  580.  If  the  husband  did  not  survive  the 
wife,  the  will  made  by  his  consent,  during  coverture,  failed,  but  she  might 
then,  of  course,  make  a  new  will,  as  a  feme  sole. 

6  Scammell  v.  Wilkinson,  2  East.  552;  s.  c.  sub  nom.  Stevens  v.  Bagwell,  15 
Ves.  139;  Willock  v.  Noble,  L.  R.  7  Eng.  &  Ir.  Appeals,  580  (589,  590). 


COVERTURE.  9 

3.  So  she  might  dispose  by  will  of  her  "  separate  property," ' 

and  also, 

4.  She  might  make  a  will,  or  an  instrument  of  like  nature,  in 
execution  of  a  power  conferred  on  her  to  that  effect.2 

The  present  English  Statute  of  Wills  (1  Vict.,  c.  26,  sec.  8),  pro- 
vides that  "  no  will  made  by  any  married  woman  shall  be  valid,  ex- 
cept such  a  will  as  might  have  been  made  by  a  married  woman 
before  the  passing  of  this  act."  The  exceptions  thus  provided  for 
may  all  be  classified  under  the  four  heads  already  named.3 

In  America  these  general  rules  of  the  English  law  concerning 
the  riidit  of  a  married  woman  to  make  a  will  are  also  in  force,  ex- 
cept  as  qualified  by  decisions,  or  changed  by  statutes.  But  the 
restriction  on  her  right  has,  in  general,  been  modified,  and  in  some 
States  in  large  degree  or  entirely  abolished.  Even  the  States,  how- 
ever, that  have  made  most  substantial  progress  in  this  direction 
differ  widely  in  details,  and  in  the  particular  stage  to  which  the 
movement  lias  brought  them.  For  this  reason,  and  also  because 
new  legislation  in  favor  of  still  greater  rights  is  frequent,  it  would 
be  useless  here  to  attempt  a  detailed  statement  of  the  present  laws 
on  this  subject  in  the  various  States. 

[See  Stoutenburgh  v.  Hopkins,  43  N.  J.  Eq.  577  (12  Atl.  Eep. 
689);  Gregory  v.  ( >ates  (Ky.),  8  S.  W.  Kep.  231 ;  Appeal  of  Cooke, 
132  Penn.  St.,  533.] 

1  Fettiplace  v.  Gorges,  1  Ves.  Jr.  46;  Perkins  v.  Towery  (Ky.),  3  S.  W.  Rep. 
604;  Willock  v.  Noble,  L.  K.  7  Eng.  &  Ir.  Appeals,  580;  Tappenden  v.  Walsh, 
1  Phill.  852  :  Rich  v.  (ock, 11,  9  Ves.  860  (879) ;  Hadden  v.  Fladgate,  1  Bw.  & 
Tr.  48.  Bo  as  to  the  fee  of  licr  separate  real  property,  Taylor  v.  Meads,  4  De 
Q,  J.&  s.  597;  Hall  v.  Waterhouse,  5  (Jiff.  64;  Tullett  v.  Armstrong,  l  Beav. 
1.  See,  however,  Osgood  v.  Breed,  12  Mass.  526  ;  Marston  v.  Norton,  5  N.  II. 
206  ;  \\,-i  v.  West,  3  Rand.  (Va.)  878.  Her  right  might,  however,  even  in 
the  case  of  separate  property,  be  restricted  or  cut  off  by  the  terms  of  the  in- 
rtrumenl  out  of  which  her  separate  [uteres!  in  the  property  In  question  arose. 
This  restriction  was  of  ten  effected  by  a  clause  "against  anticipation."  Bisp> 
ham's  Ivjuity,  ;'  1<U;  I.ewin  on  Trusts,  128.  For  a  long  and  elaborate  discussion 
of  the  BUbjeCt  Of   a  married  woman's    separate  property  and  lier  power  ol    dis 

position,  citing  a  jrreal  Dumber  of  English  and  American  authorities,  see  note 

to   Ilnlme  v    Tenant,   1    Leading  'as.  Eq.  (Hare  A    Wallace's    Itli    Am.   Ed.,  p. 

lie, ti,  v.  Withington,  8Cush.  197;  2  Kent  Comm.  170,  171  ;  4  Kenl  Comm. 
606;  Bugdenon  Powers,  Chap.  V.;  Perkins  v.  Towery  (Ky.),  8  S.  W.  Rep  604 
Wilio.-k  v.  Noble,  L   R  7  En  •   &  tr.  Appeals,  ">80. 


10  TESTAMENTARY   INCAPACITY. 


III.  ALIENAGE. 

At  common  law  an  alien  might  hold  land  as  against  all  except 
the  crown,  and  even  as  against  the  crown  until  office  found.1  He 
had,  therefore,  only  a  defeasible  title,  but  such  as  it  was,  he  might 
devise  it,  in  which  case  it  still  remained  subject,  in  the  hands  of  the 
devisee,  to  the  same  rights  of  the  crown  to  seize  it  after  office 
found.2  This  incapacity  to  hold  absolutely,  and  consequently  to 
give  an  indefeasible  title  by  devise,  arose  from  feudal  and  political 
reasons  not  applicable  to  personal  property,  which  might,  therefore, 
be  bequeathed  by  an  alien.3 

Following  earlier  legislation,  however,  on  this  subject  in  England, 
the  Act  of  33  Vict.,  c.  14,  sec.  2  (1870),  provides  that  "real  and 
personal  property  of  every  description  may  be  taken,  held,  acquired, 
and  disposed  of  by  an  alien  in  the  same  manner  as  by  a  natural- 
born  British  subject ;  and  a  title  to  real  and  personal  property  of 
every  description  may  be  derived  through,  from,  and  in  succession 
to  an  alien  in  the  same  manner  in  all  respects  as  through,  from,  or 
in  succession  to  a  natural-born  British  subject." 

The  laws  of  our  States  have,  in  some  cases,  abolished,  and  in 
others  have  modified  the  old  English  rules.  The  present  laws  of 
the  various  States  vary  very  widely  from  one  another,  and  the  local 
statutes  and  decisions  must  in  every  case  be  consulted. 

IV.  CRIME. 

The  former  law  of  testamentary  incapacity  arising  through  crim- 
inal conduct  is  stated  by  Blackstone  as  follows : 

"  Persons  incapable  of  making  [wills  and]  testaments,  on  account 
of  their  criminal  conduct,  are,  in  the  first  place,  all  traitors  and 
felons,  from  the  time  of  conviction ;  for  then  their  goods  and  chat- 
tels are  no  longer  at  their  own  disposal,  but  forfeited  to  the  king 

1  As  to  the  distinction  between  an  alien  enemy  and  an  alien  friend,  see  1 
Redf.  on  Wills,  13  ;  Fairfax's  Devisee  v.  Hunter's  Lessee,  7  Crancb,  603. 
Compare,  as  to  bequests  of  personalty,  on  this  point,  infra,  note  3. 

2  1  Jarman  on  Wills,  41. 

3  Du  Hourmelin  v.  Sheldon,  1  Beav.  79;  Craig  v.  Leslie,  3  Wbeat.  563;  An 
stice  v.  Brown,  6  Pai.  448.  But  only  by  an  alien  friend;  not  by  an  alien  enemy, 
1  Redf.  on  Wills,  9;  1  Williams  on  Exrs.  12.  Compare,  as  to  devises  of  realty, 
on  this  point,  supra,  note  1. 


CRIME.  11 

[and  their  land  escheats  as  a  result  of  attainder1].  Neither  can  a 
felo  de  se  make  a  will  of  goods  and  chattels,  for  they  are  forfeited 
by  the  act  and  manner  of  his  death  ;  but  he  may  make  a  devise  of 
his  lands,  for  they  are  not  subjected  to  any  forfeiture.  Outlaws 
also,  though  it  be  but  for  debt,  are  incapable  of  making  a  will,  so 
long  as  the  outlawry  subsists,  for  their  goods  and  chattels  are  for- 
feited during  that  time.  As  for  persons  guilty  of  other  crimes, 
short  of  felony,  who  are  by  the  civil  law  precluded  from  making 
testaments  (as  usurers,  libelers,  and  others  of  a  worse  stamp),  by  the 
common  law  their  testaments  may  be  good." 3 

Apart  from  the  bearing  of  intermediate  legislation  in  England, 
the  statute  33  and  ?A  Vict.  (1870),  c.  23,  establishes  the  law  of  that 
country  on  a  new  basis.  For,  subject  to  provisions  concerning 
custody  and  employment  of  a  felon's  or  traitor's  property  during 
his  life,  it  abolishes  attainder,  corruption  of  blood,  forfeiture,  and 
escheat,  for  treason,  felony,  and  felo  de  se.  And  inasmuch  as  these 
penalties  constituted  at  the  common  law  the  only  ground  for  testa- 
mentary incapacity  arising  from  criminal  conduct,  that  incapacity 
has  now  disappeared,  together  with  the  ground  for  its  existence.3 
That  such  is  the  necessary  result  of  such  statutory  changes  has 
been  expressly  held  in  Kentucky,  where,  under  laws  abolishing 
attainder  and  forfeiture,  probate  was  granted  to  a  will  of  real  and 
p«-r.»onaI  property  executed  by  a  murderer  after  his  conviction  and 
sentence  to  death/ 

In  this  country  the  United  States  Constitution  (art.  III.,  sec.  3) 
pmvide..  tint  "no  Attainder  of  Treason  shall  work  Corruption  of 
Blood,  or  Forfeiture  except  during  the  Life  of  the  Person  at- 
tainted."1    And    it   is   further  provided  by  the  IT.   S.   Revised 


'  1  Jarman  on  Wills,  42;  Bac.  Abr.  "  Wills"  B. 

"2  Blackst.  Comm.  199. 

' l  .Farm,  on  Will.  18  (4th  English  Ed.;  Randolph  &Tallcott's  Am.  Ed.). 
The  statute  is,  however,  by  Ms  terms  made  inapplicable  to  the  then  existing  law 
of  forfeiture  consequent  upon  outlaurry.  [d.  By  the  A.cl  of  58  Geo.  [II.,  c. 
127,  providing  thai  excommunication  shall  entail  no  civil  Incapacity  whatever, 

any  prcviou    qu<  rtion  < c<  rning  the  te  itamentary  rights  of  excommunicated 

pei  removed. 

•  Rankin  v.  Rankin,  8T.  B.  Monr.  581,  which  see  for  a  clear  and  valuable 
exposition. 

Concerning  the  meaning  and  Bcope  of  this  con  litutional  provision,  and  of 
the  conn"  i  ition  act  passed  during  the  Civil  War,    ee  Wallach  v.  Van  Riswick, 


12  TESTAMENTARY  INCAPACITY. 

Statutes,  sec.  5326,  that  "  no  conviction  or  judgment  shall  work 
corruption  of  blood  or  any  forfeiture  of  estate." 

The  local  provisions  of  a  similar  character  vary  somewhat  in 
phraseology  and  in  scope,  and  are  to  be  found  in  the  constitutions 
of  some  of  the  States '  and  in  the  statutes  of  others." 


V.  MENTAL  UNSOUNDNESS. 

The  statutes  of  wills  usually  require  that  the  testator  must  be 
of  "sound  mind.''  This  term  calls  for  two  things.  In  the  first 
place,  the  mind  must  possess  a  certain  degree  of  intelligence. 
What  degree  that  is,  we  will  consider  in  a  moment.  But  in  the 
second  place,  besides  having  the  requisite  degree  of  intelligence, 
it  must  be  free  from  insane  delusions  which  might  affect  the  pro- 
visions of  the  will. 

First,  then,  concerning  the  degree  of  intelligence  required  by 
law  to  enable  a  testator  to  make  a  valid  will.  On  this  point  there 
has  been  much  discussion,  and  it  has  been  found  impracticable  to 
lay  down  any  hard  and  fast  definition  that  will  answer  for  all  cases. 
There  is  a  general  agreement,3  however,  that  the  testator  must  be 
able  to  summon  before  his  mind,4  on  the  same  occasion,  and  hold 
there  for  a  reasonable  period,  (a)  the  persons  who  might  naturally 
be  the  objects  of  his  bounty  and  his  relations  to  them ;  and  (b) 
the  property  he  has  to  dispose  of,  and  that  (c)  he  must  understand 


92  IT.  S.  202  ;  111.  Cent.  R.R.  Co.  v.  Bos  worth,  133  U.  S.  92,  and  cases  there 
cited.  Concerning  treason  against  a  State  as  distinguished  from  the  national 
government,  see  N.  Y.  Penal  Code,  sec.  37;  N.  Y.  Code  Civ.  Proc.  1977,  1982; 
People  v.  Lynch,  11  Johns.  549. 

1  For  instance,  Constitution  of  Penn.,  art.  i.,  sees.  18  and  19. 

2  For  instance,  N.  Y.  Penal  Code,  sec.  710;  N.  Y.  Code  Crim.  Proc,  sec. 
819. 

3  Lee's  Case,  46  N.  J.  Eq.  193;  Converse  v.  Converse,  post,  p.  25; 
Reichenbach  v.  Ruddach,  127  Penn.  St.  564;  Stoutenburgh  v.  Hopkins,  43 
N.  J.  Eq.  577;  Kramer  v.  Weinert,  81  Ala.  414;  Prather  v.  McClelland, 
76  Tex.  574  (13  S.  W.  Rep.  543);  Bannister  v.  Jackson,  45  N.  J.  Eq.  702  (17 
Atl.  Rep.  692);  Kerr  v.  Lunsford,  31  W.  Va.  659  (8  S.  E.  Rep.  493);  Clifton  v. 
Clifton  (N.  J.),  21  Atl.  Rep.  333;  In  re  Blair's  Will,  16  Daly,  540  (16  N.  Y. 
Supp.  874);  Spratt  v.  Spratt,  76  Mich.  384;  Durham  v.  Smith,  120  Ind.  463; 
Chrisman  v.  Chrisman,  16  Ore.  127  (136);  Brown  v.  Ward,  58  Md.  382  (396). 

4  He  must  be  able  to  do  so.  It  is  not  necessary  to  show  that  he  did  in  fact 
do  so.     Brown  v.  Mitchell.  75  Tex.  9. 


MENTAL   UNSOUNDNESS.  13 

the  scope  and  bearing  of  the  provisions  of  the  will.1  If  the  testa- 
tor can  do  this,  he  has  mind  enough,  and  this  brings  us  to  the  sec- 
ond point  above  mentioned,  namely,  that  that  mind  may  never- 
theless still  be  rendered  unsound  by  the  presence  of  insane  delu- 
sions. If  the  mind  is  also  free  from  insane  delusions  which  might 
affect  the  provisions  of  the  will,  then  it  is  a  sound  mind. 

Such  then,  in  brief,  is  the  meaning  of  the  statutory  requirement 
that  the  testator  must  be  of  sound  mind.2  But  in  applying 
the  requirement  to  the  ever-varying  and  complex  facts  of  actual 
cases,  we  encounter  many  serious  perplexities.  Contests  over  the 
question  of  testamentary  capacity  seldom  arise  unless  there  is  some 
ground  for  imputing  some  degree  of  weakness  or  peculiarity.  And 
the  particular  forms  of  mental  and  physical  debility  or  eccentricity 
or  derangement  are  so  numerous  as  to  give  rise,  in  such  contests, 
to  an  almost  numberless  multitude  of  single  instances,  each  of 
which  must  be  passed  on  by  the  court  on  its  own  merits.  There 
are,  it"  is  true,  marked  cases  of  insanity  or  idiocy  which  are  readily 
recognized  and  proved.  But  yet,  between  these  and  normally  con- 
stituted and  healthy  minds,  the  gradations  shade  off  by  impercep- 
tible degrees.  And  as  each  case  arises,  the  question  must  always 
recur  whether,  on  the  given  evidence  and  all  the  circumstances, 
the  given  instrument  does  actually  represent  the  real  will  of  a  com- 
petent testator,  and  no  automatic  rule  can  be  laid  down  which  will 

1  In  regard  to  the  third  requirement,  tliere  is  one  question  to  which  attention 
should  here  be  called.  In  New  York,  in  the  famous  case  of  Delafleld  v.  Par- 
ish, 36  X.  V.  10  (97),  a  majority  of  the  court  agreed  that  the  question  in  each 
case  Lb  whether  the  testator  bad  sufficient  capacity  to  make  a  will,  and  not 
whether  be  had  capacity  to  make  the  particular  will  produced.  "If  compos 
mentis,  be  can  make  any  will,  however  complicated:  if  non  compos  mentis,  be 
can    make    no  will — not    the    simplest."     An    opposite   vi«  \v   is,  that    the   scope 

ami  bearing  of  the  particular  will  should  be  taken  into  consideration  in  decid- 
ing whether  the  given  testator  was  mentally corapetenl  to  make  thai  will.  And 
this  latter  is  the  generally  accepted,  and  is  certainly  the  mosl  reasonable,  doc- 
trine. Harrison  v.  Rowan,  :t  Wash.  C.  C.  685;  Bt.  Leger's  Appeal,  84  Conn, 
184;  Tn  re  Bilverthorn,  88  Wis.  872  (82  V  W.  Rep.  287).  "We  bave  also 
given  sanction  to  the  doctrine  thai  a  man  may  no!  be  competent  to  make  a  will 

of  one   kind,  owing  to  the    nature   and    extent    of   the  estate,  when  be  may  be 

competent  to  make  one  less  complicated."  Campbell  v.  Campbell,  180111. 
168(480).  And  io  also  now,  apparently,  tn  New  fork;  Van  Guysling  v.  Van 
Kuren.  BO  N.  V.  70(74);  Horn  v.  Pullman,  72  N.  V   369  378). 

Sometime   the    tatute  calls  for  sound  mind  and  memory,  or  sound  mind, 
memory,  and  understanding,    The  meaning  is  the  ame. 


14  TESTAMENTARY   INCAPACITY. 

not  call  for  constant  modification,  qualification,  and  adaptation  to 
the  new  facts  of  each  new  case. 

But  nevertheless  the  actual  cases  do  range  themselves  in  certain 
broad  classes,  to  each  of  which  has  gradually  been  assigned  its  own 
distinct  set  of  general  rules,  logically  adapted  to  the  leading  char- 
acteristics of  each  class.  These  several  classes  or  kinds  of  mental 
incompetency  to  make  a  will,  and  the  boundaries  and  rules  of  each, 
we  are  now  to  examine.  To  be  useful,  the  division  must  be  made 
on  a  practical  basis,  according  to  broad,  general  lines,  and  it  is  be- 
lieved that  the  following  arrangement  will  be  found  most  con- 
venient. 

In  the  first  place,  then,  in  judging  of  testamentary  capacity,  both 
the  body  and  the  mind  should  be  considered, — the  mind,  because 
its  "  soundness  "  is  the  very  point  in  question  ;  the  body,  only  be- 
cause of  the  light  its  condition  often  throws  upon  the  state  of  the 
mind.  The  mere  fact  that  the  testator  is  physically  weak,  dis- 
ordered, maimed,  or  deformed  is,  in  itself,  of  no  importance,  except 
as  it  may  go  to  show,  in  the  particular  instance,  a  resulting  or 
accompanying  absence,  weakness,  or  derangement  of  mind.  Thus, 
a  man  may  make  a  valid  will  though  blind,1  or  deaf,2  or  dumb,2  or 
exceedingly  weak  and  feeble  in  body ; 3  so  though  he  is  extremely 
old.4  For  though  one  may  be  too  young  to  make  a  will,  he  cannot 
be  too  old,  if  only  he  retains  a  "  sound  mind."  In  cases  where  the 
body  is  feeble,  deranged,  or  deficient  in  any  of  its  parts  or  func- 
tions, as  for  instance  where  testator  is  blind,  deaf,  or  dumb,  this  fact 
may  call  for  greater  care  in  making  sure  that  the  mind  was  never- 
theless sufficiently  clear  and  strong,  and  that  the  testator's  own  will 


1  Ray  v.  Hill,  3  Strobh.  (S.  Car.)  297  ;  In  Goods  of  Piercy,  1  Roberts.  278 ; 
In  re  Mullen,  5  Irish  Eq.  309;  Wilson  v.  Mitchell,  101  Penn.  St.  495  (503). 

2  In  re  Geale,  3  Sw.  &  Tr.  430.  See  Goods  of  Owston,  2  Sw.  &  Tr. 
461. 

3  Hathorn  v.  King,  8  Mass.  371  ;  Horn  v.  Pullman,  72  N.  Y.  269  ;  Stouten- 
burgh  v.  Hopkins,  43  N.  J.  Eq.  577;  Hoskins  v.  Hoskins  (Ky.),  (7  S.  W.  Rep. 
546);  Kerr  v.  Lunsford,  31  W.  Va.  659  (8  S.  E.  Rep.  493);  Chrisman  v.  Chris- 
man,  16  Ore.  127;  Patterson's  Will,  13  N.  Y.  Supp.  463. 

4  Collins  v.  Townley,  21  N.  J.  Eq.  353;  Wilson  v.  Mitchell,  101  Penn.  St. 
495;  Van  Alst  v.  Hunter,  5  Johns.  Ch.  148  (158);  Horn  v.  Pullman,  72  N.  Y. 
269;  Snelling's  Will,  17  N.  Y.  Supp.  683;  Clearwater's  Will.  2  N.  Y.  Supp.  99; 
Napfle's  Estate,  134  Penn.  St.  492;  Appeal  of  Richmond,  59  Conn.  226;  White 
v.  Starr,  47  N.  J.  Eq.  244. 


MENTAL   UNSOUNDNESS.  15 

is  really  expressed  in  the  instrument.1  But  this  is  a  question  of 
evidence.  So  much  in  general  for  the  body.  The  cases  of  mental 
incompetency  of  testators  may,  for  purposes  of  practical  conveni- 
ence, be  best  divided  into  classes,  as  follows : 

IDIOCY. 

First,  a  broad  field  is  covered  by  the  term  idiocy.2  This  condition 
results  from  arrested  mental  development,  and  is  generally  said  to 
be  determined  by  a  child's  condition  at  birth.  But  development  is 
sometimes  arrested  after  birth,  in  very  young  children,  and  the  re- 
sult, at  least  from  our  present  point  of  view,  is  the  same.  So,  also, 
it  is  not  unknown  that  accident  or  violent  grief  may  sometimes  so 
affect  the  mind  as  to  cause  not  derangement  but  decay,  and  bring  it 
finally  to  a  condition  very  similar  to  idiocy.  There  are  degrees  of 
idiocy,'  but  no  person  properly  classified  as  an  idiot  can  make  a 
valid  will.3  But  mere  weakness  of  mind,  whether  natural  or  pro- 
duced by  prostration  or  decay,  will  not  incapacitate  a  testator,4  so 
long  as  his  mind  satisfies  the  test  already  set  forth.  For  as  Swin- 
burne says : "  "If  a  man  be  of  a  mean  understanding  (neither  of  the 
wise  sort  nor  the  foolish),  but  indifferent,  as  it  were,  betwixt  a  w  1m  ■ 
man  and  a  fool,  yea,  though  he  rather  incline  to  the  foolish  sort, 
so  that  for  his  dull  capacity  he  might  worthily  be  termed  grossum 
caput,  a  dull  pate,  or  a  dunce,  such  an  one  is  not  prohibited  from 
making  his  testament." 

INSANITY — LUNACY. 

In  another  important  class  of  cases  minds  once  rational  have  be- 
eome  deranged,  either  from  accident,  or  sickness,  or  grief,  or  the 
development  of  some  hidden  tendency,  or  otherwise,  and  are  sub- 
ject to  "delusions,"  i.e.,  they  believe  things  to  exist  which  have 
no  real  existence,  and  are  incapable  of  being  permanently  reasoned 

Ontof  BUCh  erroneous  belief.     ( 'oncerning  the  delusions  which  ailed 
the  mind.-  of  the  in -a  ne,  il  is  Said  in  the  opinion  in  Dew  v.  ( 'lark  : ' 


1  In  !■■  Geale,  ::  Bw.  A  Tr.  480;  Longchampa  v.  Fish,  2  B.  A-  1'.  (New  Rep.) 
4ir,;  w.ir  v.  Fitzgerald,  2  Bradf.  (N.  Y.)  42 

\  ii  [diol  Is  a  person  who  has  been  without  understanding  from  iiis  nativity; 
a  niitur.il  fool;  a  natural.     Bouvier's  Law  Did.:  Worcester's  Dictionary. 
Townsend  v.  Bogart,  ■  >  Redf.  109.  '  Hathorn  v.  King,  8  Mass.  87L 

i'i.  a,  s.  •!,  pi.  :;.  '  :'.  Addami ,  :>i  DO. 


1C  TESTAMENTARY   INCAPACITY. 

"  The  true  criterion — the  true  test  of  the  absence  or  presence  of 
insanity,  I  take  to  be,  the  absence  or  presence  of  what,  used  in  a 
certain  sense  of  it,  is  eomprisable  in  a  single  term,  namely — 
delusion.  Wherever  the  patient  once  conceives  something  extrava- 
gant to  exist,  which  has  still  no  existence  whatever  but  in  his  own 
heated  imagination  ;  and  wherever,  at  the  same  time,  having  once 
so  conceived,  he  is  incapable  of  being,  or  at  least  of  being  perma- 
nently, reasoned  out  of  that  conception,  such  a  person  is  said  to  be 
under  a  delusion,  in  a  peculiar,  half-technical,  sense  of  the  term ; 
and  the  absence  or  presence  of  delusion,  so  understood,  forms,  in  my 
judgment,  the  true  and  only  test  or  criterion  of  absent  or  present 
insanity."  1 

Sometimes  in  the  case  of  persons  afflicted  with  insanity,  this 
presence  of  delusions  is  their  permanent  and  settled  condition, 
while  sometimes,  on  the  other  hand,  they  are  subject  to  what  are 
known  as  "lucid  intervals,"  i.e.,  intermittent  periods  when  the 
mind  breaks  away  from  its  delusions,  and  for  the  time  being  acts  in 
a  rational  and  normal  manner.  The  word  lunatic  is  derived  from 
this  fact,  on  account  of  some  supposed  connection  between  these 
intervals  and  the  periodic  lunar  changes.  But  the  term  lunacy  is 
very  commonly  applied  to  all  forms  of  insanity  without  reference 
to  the  special  nature  of  the  malady.  Now,  in  all  these  cases  the 
one  vital  question  is,  whether  the  will  in  hand  was  made  during  a 
lucid  interval.  An  insane  person  belonging  to  the  classes  thus  far 
described  cannot  make  a  will  at  all,  except  during  a  lucid  interval. 
His  insanity  and  its  attendant  incapacity,  once  proved,  are  presumed 
to  continue.2     But  the  existence  of  a  lucid  interval  at  the  time  of 

1  Approved  and  followed  in  Am.  Seamen's  Friend  Soc'y  v.  Hopper,  33  N.  Y. 
619  C624i;  Boughton  v.  Knight,  L.  R.  3  P.  &  D.  64  ;  Potter  v.  Jones,  20  Ore. 
239  ;  see  Barbo  v.  Rider,  67  Wis.  600.  If  there  is  any  apparent,  even  though 
entirely  insufficient,  cause  for  a  delusion,  then  testator's  belief  may  only  show 
poor  judgment  and  defective  reasoning  power,  and  not  insanity.  In  re  Coles' 
Will,  49  Wis.  181;  Potter  v.  Jones,  20  Ore.  239;  Middleditch  v.  Williams,  45 
N.  J.  Eq.  726  ;  Clapp  v.  Fullerton,  34  N.  Y.  190  (197). 

2  White  v.  Driver,  1  Phill.  84;  Cartwright  v.  Cartwright,  1  Phill.  90;  Reich- 
enbach  v.  Rudd.ich,  127  Penn.  St.  564  ;  Stevens  v.  Stevens,  127  Ind.  560. 
No  such  presumption  exists  where  the  insanity  arises  from  a  merely  temporary 
cause,  as  fever.  It  is  proper  to  here  call  attention  to  a  divergence  of 
views  on  an  allied  question, — namely,  the  nature  and  weight  of  the  burden 
imposed  on  every  proponent  concerning  proof  of  testator's  mental  sound- 
ness.    The  apparent,  and  to  some  extent  real,  conflict  among  the  authori- 


MENTAL   UNSOUNDNESS.  17 

making  the  will  may  be  shown  by  affirmative  proof,'  and  there- 
upon the  presumption  of  continuing  incapacity  at  that  time  is  re- 
butted, and  the  objection  on  that  ground  is  removed.  Therefore 
it  is  presumptive  but  not  conclusive  evidence  of  incapacity  that  the 
testator  was  unquestionably  a  lunatic,  and  that  he  was,  at  the  time 
of  making  the  will,  confined  in  an  asvlum.  For  if  he  made  it  dur- 
ing  a  lucid  interval,  and  his  mental  condition  for  the  time  being 
also  satisfied  the  test  already  stated  (p.  12,  ante),  it  is  sufficient.3 

ties  on  this  point  appears  to  arise  from  the  fact  that  there  are  two  separate  rules 
to  be  considered  :  first,  that  the  law  presumes  every  one  to  be  of  sound  mind 
until  the  contrary  is  shown;  and  second,  that  the  burden  of  proving  the  will  is 
on  the  proponent.  In  some  States  it  is  held  that  the  proponent  need  only  prove, 
in  the  first  instance,  the  due  formal  execution  of  the  will,  and  that  then  it  is 
open  to  the  contestant  to  show  incapacity,  and  to  the  proponent  to  offer  affirm- 
ative proof  of  mental  soundness  in  rebuttal.  Higgins  v.  Carlton,  28  Md.  115 
(141).  In  others,  the  proponent  is  expected  to  offer  some  outside  affirmative 
proof  of  testator's  mental  soundness  to  start  with.  Knox's  Appeal,  26  Conn.  25. 
In  the  former  class  of  cases  the  true  ground  of  decision  appears  to  be  not 
that  the  prima  facie  presumption  of  mental  soundness  dispenses  with  all  prelim- 
inary proof  of  the  fact,  and  relieves  the  proponent  of  his  admitted  burden  ;  but 
that  the  mere  showing  of  due  formal  execution  of  an  apparently  rational  will 
constitutes  such  preliminary  proof,  and  contributes  to  the  material  necessary 
to  set  the  presumption  going.  While  in  the  second  class  of  cases  the  existence 
of  the  presumption  is  not  denied,  but  it  is  held  that  it  is  not  set  in  motion 
without  some  further  (though  slight)  preliminary  proof  that  the  circumstances 
at  the  time  of  execution  were  such  as  to  indicate  that  the  case  in  question  was 
of  the  usual  character  falling  within  the  scope  of  the  presumption.  The  true 
general  rule  would  appear  to  be  that,  taking  the  proceeding  for  probate  as  a 
whole,  the  proponent  must  throughout  sec  to  it  that  the  preponderance  of  evi- 
dence of  some  son  is  in  favor  of  the  usual  presumption  and  such  as  will  justify 
the  court  in  assuming  the  requisite  soundness  of  mind,  and  that  it  is  only  the 
question  of  just  whit  -hall  be  sufficient  for  that  purpose  thai  is  generally  in  de- 
pute. Todd  v.  Rennick,  18  Colo.  546.  For  the  general  rules  see  Brown  V. 
Ward.  58  Md.  895;  Elkinton  v.  Brick,  44  N.  J.  Eq.  L58;  McCoon  v.  Allen, 
4r>  X.  .1.  Eq.  708;  Kerr  v.  Lunsford,  :si  W.  Va.  659.  In  re  Silvcrthorn,  68 
Wit  ■■■  McCulloch  v.  Campbell,  49  Ark.  86,7 j  Allen  v.  Griffin  (Wis.),  69 
Wis.  529  ;  Kennedy  v.  Cpshaw,  66  Tex.  449  ;  In  re  Layman's  \\  ill.  40  Minn. 

1  White  v.  Driver,   1    I'hill.  84  :    Dew  v.  Clark,  '.\  Addams,  70  ;   BoUghtOD  v. 

Knight,  L.  R.  :;  I'.  &  D.  64  (76).  Even  a  formal  finding  of  Insanity  after  in 
quest  may  !»•  rebutted  by  proof  of  a  lucid  interval  al  the  time  in  question. 
Titlow  v.  Titlow,  :.i  Penn.  St.  316. 

«  Nichols  v  Binns,  l  Bw.  &  Tr.  289.  The  fact  that  after  making  hi-  will 
t'-  tator  committed  suicide,  is  admissible  as  evidence  on  the  question  of  his 
sanity,  but  is  by  no  means  conclusive.  Burkhaii  v.  Gladish,  138  Ind.  887; 
Card\  Will,  8  V  V.  Bupp.  2!t7;  Chambers v  Queen'    Proctor,  '  I  urt.  115. 


18  TESTAMENTARY   INCAPACITY. 


INSANITY — MONOMANIA. 


There  is  a  still  farther  large  class  of  insane  persons,  known  as 
monomaniacs,  who,  as  the  term  indicates,  are  deranged  in  some 
one  direction,  though  sane  in  others.  They  are  subject  to  "  delu- 
sions "  like  the  other  class  of  insane  persons  just  considered,  but 
these  delusions  are  confined  within  a  restricted  field.  Concerning 
the  capacity  of  monomaniacs  to  make  their  wills,  there  has  been 
in  the  past  much  discussion  and  divergence  of  opinion.  The  diffi- 
culty appears  to  have  arisen  chiefly  out  of  the  phrase  "  partial 
insanity,"  which  was  once  commonly  employed  to  designate  the 
condition  of  persons  known  as  monomaniacs.  On  one  side  it  was 
contended  that  the  mind  was  a  unit,  and  that  it  could  not  fairly 
be  said  that  one  part  of  it  could  be  unsound  and  another  part 
sound.'  On  the  other  side  attention  was  called  to  the  undoubted 
fact  that,  in  spite  of  all  theories,  many  persons  obviously  insane 
on  certain  subjects  were  perfectly  and  uninterruptedly  sane  on  all 
other  matters.2 

This  question  may  now  be  regarded  as  at  rest,3  and  it  is  settled 
that  the  mere  existence  of  a  monomania  does  not  necessarily  inval- 
idate the  will.  And  here  arises  an  important  distinction  peculiar 
to  these  and  similar  cases.  For  if  the  insane  delusion  is  of  such  a 
character  that  it  may  have  occasioned  the  provisions  of  the  will,  it 
is  fatal  to  the  validity  of  the  instrument,4  while  if  it  relates  to 
some  subject  wholly  disconnected  from  those  provisions,  and  did 
not  occasion  them,  and  is  a  monomania,  not  involving  a  diseased 
condition  of  the  mind  on  other  subjects,  it  does  not  invalidate  the 
will.5 


1  Waring  v.  Waring,  6  Moore  P.  C.  341  ;  Smith  v.  Tebbitt,  L.  R.  1  P.  & 
D.  398. 

2  See  Dunham's  Appeal,  27  Conn.  192. 

3  Banks  v.  Goodfellow,  L.  R.  5  Q.  B.  349  ;  Boughton  v.  Knight,  L.  R.  3  P. 
&  D.  64. 

4  Dew  v.  Clark,  3  Add.  79  ;  Vance  v.  Upson,  G6  Tex.  476  ;  Smee  v.  Smee, 
5  P.  D.  84  ;  Boughton  v.  Knight,  L.  R.  3  P.  &  D.  64. 

5  Banks  v.  Goodfellow,  L.  R.  5  Q.  B.  549  ;  Murfett  v.  Smith,  12  P.D.  116  ; 
Society  v.  Price,  115  111.  023  ;  White's  Will,  121  N.  Y.  406  ;  Middleditch  v. 
Williams,  45  N.  J.  Eq.  726  ;  Durham  v.  Smith,  120  Ind.  463. 


MENTAL   UNSOUNDNESS.  19 


IU/ustrations. 


(a).  The  mind  of  John  Banks,  the  testator,  had  long  been  dis- 
turbed by  two  delusions,  the  one  that  he  was  pursued  by  spirits, 
the  other  that  a  certain  Featherstone  Alexander,  a  man  long  since 
dead,  came  personally  to  molest  him.  Neither  of  these  delusions — 
the  dead  man  not  having  been  in  any  way  connected  with 
him— had,  or  could  have  had.  any  influence  upon  him  in  making 
the  will  in  question.  Held,  that  the  existence  of  a  delusion,  com- 
patible with  the  retention  of  tb  •  g  meral  powers  and  faculties  of  the 
mind,  will  not  be  sufficient  to  overthrow  the  will,  unless  it  is 
such  a>  was  calculated  to  influence  the  testator  in  making  it.1 

■  b  .  The  testator  became  subject  to  a  delusion  that  he  was  a  son  of 
King  Ge  >rge  IV.,  and  addressed  to  Queen  Victoria  a  memorial  on 
that  subject  which  gives  conclusive  evidence  of  insanity.  By 
hi-  will  he  left  his  property  to  his  wife  for  life,  and  after  her 
d    ii. :i   to  found   a  free  public  library  for  the  use  of  the  people  of 

ighton,  a  place  in  which  George  IV.  had  taken  a  deep  interest, 
lb-  also  labored  under  a  delusion  that  he  had  been  defrauded  by 
his  brother,  and  he  made  no  provision  for  him  by  his  will.  The 
will  was  held  invalid." 

The  testatrix  believed  herself  a  member  of  the  Trinity — that 
was  the  Holy  Gho3t,  and  a  Mr.  Simnis  Smith  was  the  Father. 
•   believed   that  epidemic  diseases  came  through  her  agency. 
"God  said,  'Turn  on  the  screw,'  and  the  cholera  came;  'Turn  it 
lin,'  and  it  ceased."     The  court  say  that  there  were  clear  traces 
ion  to  the  will  of  a  beneficiary    -Mr.  Simms  Smith— ap- 
parently  founded    on    the  special  subjeel  of  her  hallucinations  for 
which  tin-  external  and  visible  relations  of  the  parties  could  hardly 
account.     The  will  was  held  invalid.' 

DEMENTIA. 

Still  another  ela—  includes  Cases  of   mere  weakening  or  decay  of 

the  mind.     The  term  applied  here  is  <h  m<  ///A/,— the  mind  fading 


Banks  v.  Goodfellow,  I.   R.  •",  o   B  549. 
Bmee  \    3mee,  G  p.  |>.  84. 

Smith  t    Tebbitt,  l>.  If.  1  P  A-  D.  898;  the  opinion  in  this  case,  however, 
be  old  and  oow  obsolete  rule  thai  the  existence  of  any  Insane  delusion 
renders  tin-  whole  mind  unsound. 


20  TESTAMENTARY   INCAPACITY. 

or  dying  away.  Very  commonly,  though  not  always,  this  con- 
dition is  due  to  old  age,  and  is  then  known  as  senile  dementia. 
And  here  it  is  difficult,  in  many  actual  instances,  to  determine 
whether  or  not  a  given  testator  has  yet  reached  or  already  passed 
the  point  where  he  had  sufficient  mental  power  to  satisfy  the  test 
already  given  (p.  12,  ante).  As  stated  above,  this  dementia  may 
progress  so  far  as  to  bring  the  testator  practically  to  a  condition  of 
idiocy. 

DELIRIUM — DRUNKENNESS. 

In  addition  to  idiocy,  and  lunacy  with  or  without  lucid  intervals, 
and  monomania,  and  dementia,  we  find  still  other  classes.  One  of 
these  is  "delirium"  due  to  fever  or  other  disease,  sometimes  tem- 
porary and  sometimes  continuing  and  developing  into  permanent 
insanity.1  Lucid  intervals  are  here  to  be  found,  and  during  their 
continuance,  but  not  otherwise,  the  patient  may  be  able  to  make  a 
valid  will.2 

Analogous  to  these  cases  are  those  of  persons  either  usually,  or 
at  the  time  of  executing  the  instrument,  under  the  influence  of 
liquor,  or  otherwise  deprived  to  a  greater  or  less  degree,  by  artificial 
means,  of  full  consciousness  and  understanding  of  their  own  acts. 
It  is  well  known  that  excessive  and  long  continued  use  of  certain 
liquors  or  drugs  may  ultimately  produce  a  chronic  disease  affecting 
the  mind  and  the  will.3  Obviously  such  a  disease  may  render  a 
testator  mentally  incompetent.  For  it  is  the  fact  of  mental  debility 
or  derangement,  and  not  the  cause  of  it,  that  is  the  vital  point  in 
determining  testamentary  capacity.  But  apart  from  such  a  result- 
ing condition  of  mental  disease,  the  distinction  to  be  observed  in 
this  class  of  cases  is  whether  the  testator,  at  the  time  of  making  the 
will,  was  or  was  not  deprived  of  the  faculties  requisite  to  qualify 
him  for  the  testamentary  act.  He  might  be  shown  to  be  a  hard 
and  confirmed  drinker,  frequently  or  even  constantly  intoxicated, 
and  yet  if,  at  the  particular  time  in  question,  he  was  sufficiently 
free  from  the  influence  of  liquor  to  know  clearly  what  he  was  about, 
and  to  otherwise  satisfy  the  usual  test,  then  proof  of  his  habits  would 

1  Keithley  v.  Stafford,  126  111.  507. 

2  As   to  the  presumption   of   continued  incapacity   from  this  cause,  see  1 
Jarm.  on  Wills  (Randolph  &  T.'s  Ed.),  97,  note  C. 

3  Reichenbach  v.  Ruddach,  127  Penn.  St.  564. 


MENTAL   UNSOUNDNESS.  21 

not  invalidate  the  will.1  While  if  it  were  shown  that  even  although 
usually  temperate,  he  was,  at  that  time,  so  far  under  the  influence 
of  liquor  as  not  to  satisfy  the  usual  test  of  capacity,  then  the  will 
could  not  stand.  And  here  we  may  notice  a  distinction  between 
cases  of  settled  insanity  and  those  of  derangement  or  stupefaction 
accompanying  or  occasioned  by  drunkenness,  fever,  or  other  merely 
temporary  cause.  For  when  the  existence  of  insanity  has  once  been 
proved,  we  have  already  seen  that  a  presumption  of  its  continuance 
is  naturally  raised,  and  the  burden  of  proving  that  the  will  was 
made  during  a  lucid  interval  rests  on  the  party  setting  it  up.2  But 
if  the  insanity  shown  arose  merely  in  connection  with  fever  or 
other  transient  cause,  the  ground  for  assuming  continued  insanity 
fails,  and  it  must  be  affirmatively  proved  to  have  existed  at  the  time 
in  question.*  Under  this  latter  head  fall  cases  of  temporary  insanity 
induced  by  excessive  drinking.  For  no  presumption  of  perpetual 
intoxication  and  consequent  permanent  deprivation  of  reason  arises 
from  proof  of  frequent,  or  habitual,  or  excessive  use  of  liquors.  No 
one  is  intoxicated  all  the  time.  And  he  who  alleges  incompetency 
from  such  a  cause  must  prove  not  only  that  testator  was  usually  in- 
toxicated, but  that  he  was  so  in  fact  at  the  very  time  the  will  was 
made.4  In  the  case  of  permanent  insanity  produced  by  drink,  how- 
ever, the  other  and  usual  rule  applies. 

Illustration. 

Robert  L.  Peck,  the  testator,  was  of  intemperate  habits.  For 
five  days  before  July  23d,  when  he  made  his  will,  he  had  been 
"on  ,i  Bpree,"  and  continued  to  drink  on  that  day,  and  he  also  used 
coarse  and  profane  language,  but  was  not  shown  to  have  been,  at  the 
time,  irrational.  The  will  itself  was  sensible.  The  will  was  sus- 
tained.    Peck  v.  Cary,  27  N.  V.  9. 


■  Peck  v.  Cary,  T,  X.  V.  9  (20);  In  re  Levis's  Estate,  140  Penn.  St.  179; 
'■"  <  a  i .  16  X.  J  Eq.  198;  Elkinton  v.  Brick,  44  N.  J.  Eq.  164  ;  Appeal  of 
Harmony  Lodge,  127  Penn.  St.  269;  Fiost  v.  Wheeler,  48  N.  J.  Eq.  678;  In  re 
Peck's  Will,  IT  X.  V   Supp.  248. 

*  See  ante,  p.  16. 

:'  Bii  v.  Whittemore,  A  Met.  646;  Townsend  v.  Townsend,  7  (Jill  (Md.)  10; 
Staples  v.  Wellington,  68  Me  168;  Blakev.  Rourke,  74  I.i  r,  n»;  Brown  v.  Ward, 
68  Md.  896. 

;  Ayrey  v  Hill,  2  Add.  300  (210);  Andreas  v.  Welter,  2  Green  Ch.  (N.  J.)  at 
608;  Lce'8  Case,  40  N.  J.  Eq.  198. 


22  TESTAMENTARY    INCAPACITY. 

"We  have  thus  stated  the  general  groups  in  which  the  courts  have 
for  practical  convenience  classed  the  cases  of  persons  mentally 
incompetent  to  make  wills,  and  have  called  attention  to  the  rules 
applicable  to  each.  It  remains  here  to  state  certain  broad  princi- 
ples laid  down  by  the  courts  and  applicable  generally  to  all  cases 
where  unsoundness  of  mind  is  set  up. 

1.  The  court  may  consider  the  instrument  itself,  and  its  pro- 
visions, to  see  whether  they  throw  any  light  themselves  on  the 
mental  condition  of  the  testator.1  It  is  obvious  that  a  mere  read- 
ing of  the  will  might  be  proof  sufficient  of  an  insane  mind  ;  and 
so  it  might  contain  certain  provisions  so  far  "  sounding  to  folly  " 
as  to  suggest  grave  doubts.2  And  on  the  other  hand,  it  might  be 
so  prudent,  sensible,  and  logical  as  to  bespeak  a  calm  and  rational 
mind  in  its  author,  and  to  constitute  one  point  in  its  own  favor.3 
As  the  saying  is,  "  a  rational  act,  rationally  done,"  is  evidence  of  a 
rational  mind  behind  the  act.4 

But  it  still  must  be  remembered  that  the  fact  that  the  instru- 
ment is  rational  in  its  provisions  is  very  far  from  be'ing  conclusive 
of  the  competency  of  the  testator.  It  is  one  important  point  for 
consideration.5  And  on  the  other  hand,  the  fact  that  the  pro- 
visions of  the  will  are  queer,  unusual,  or  extraordinary  does  not 
necessarily  show  insanity. 

Illustrations. 

(a).  For  a  rational  testamentary  act  rationally  done  by  a  lunatic, 
see  Cartwright  v.  Cartwright,  post. 

(b).  The  Reverend  Robert  Hoadly-Ashe,  rector  of  Misterton,  and 
of  Crewkerne,  who  had  preached  and  performed  the  other  duties  of 
his  office  for  many  years,  on  December  14,  1824,  made  this  will  : 

u  I  promise  &  Swear  that  I  will  give  all  my  Plate — "Watch  and 
Seals — Rings  and  all  that  I  have  in  the  world — at  my  decease — 

1  Cartwright  v.  Cartwright,  1  Phill.  90,  as  explained  in  Chambers  v.  Queen's 
Proctor,  2  Curt.  447. 

2  Arbery  v.  Ashe,  1  Hagg.  214. 

3  Boughton  v.  Knight,  L.  R.  3  P.  &,  D.  64,  and  cases  cited  in  next  note. 

4  Cartwright  v.  Cartwright,  1  Phill.  90  (explained  in  Chambers  v.  Queen's 
Proctor,  2  Curt.  447);  Nichols  v.  Binns,  1  Sw.  &  Tr.  239;  Peck  v.  Gary,  27 
N.Y.  9;  Gombault  v.  Public  Adm'r,  4  Bradf.  226  (234);  Boughton  v.  Knight, 
L.  R.  3  P.  &  D.  64. 

6  Bannatyne  v.  Bannatyne,  2  Roberts.  472. 


MENTAL   UNSOUNDNESS.  23 

I  promise  &  Swear  that  I  will  give  Elizabeth  Arbery — at  mv  De- 
cease— ail  that  I  have  in  this  world  or  ever  shall  have  in  wtaver 
in  money  or  lands —  "  Kobt.  Hoadlt — Ashe,  D.D." 

Witness      I  Elizabeth  Cleal, 
our  hands,    f  Martha  Rendell. 

Dec.  14,  1824. 

Sir  John  Nichol,  in  the  judgment,  says  :  "A  paper,  couched  in 
these  strange  terms,  and  written  in  this  strange  manner,  coming 
from  a  person  of  education,  raises  a  great  doubt  whether  it  could 

have  been  thf  offspring  of    his  mind    when  sound The 

whole  tenor  and  shape  of  the  paper  very  strongly  '  sounds  to 
folly.'        And  he  recommends  an  arrangement  out  of  court.1 

(<?).  A  had  been  clearly  disordered  in  his  mind  for  a  length  of 
time.  lie  goes  to  Little  Hampton  to  bathe  in  the  sea,  and  there 
he  sees  a  young  woman  at  the  house  where  he  boarded,  of  whom 
he  had  no  prior  knowledge,  and  wants  to  marry  her,  at  a  time 
when  he  is  insane.  He  is  brought  up  to  town  in  a  strait  waist- 
coat, and  there  afterwards  writes  a  paper  byway  of  codicil  giving 
her  a  legacy.  This  was  a  delusion.  The  codicil  was  on  its  face 
as  rationally  done  as  in  Cartwright  v.  Cartwright,2  but  the  act 
itself  was  not  a  rational  act.3 

(d).  Testator  directed  that  part  of  his  bowels  should  be  made  into 
fiddle  string-,  and  others  sublimed  into  smelling  salts,  and  the  rest 
of  his  body  vitrified  into  lenses,  explaining  that  he  had  an  aversion 
to  funeral  pomp,  and  wished  his  body  to  be  made  useful  to  mankind. 
The  will  was  sustained.' 

(<■).  An  Englishman  who  had  lived  many  wars  in  India,  ami  had 
a  i  different  times  expressed  himself  a  believer  in  the  Hindoo  and  in 

tin'  Mohammedan  faiths,  and  who  had  to  a  great  degree  adopted  the 

habits  of  lif"  of  the  latter,  provided  by  J i i ^  will  for  the  erection  of 
a  cenotaph  at  Constantinople,  with  a  light  burning,  and  a  descrip- 
tion of  the  testator  engraved  thei'ron.  This  will  was  sustained, 
apparently  a-  being  rational  in  view  of  the  history  and  opinions  of 
the  test  itor. 

'  Arbery  v.  .\-ii<\  t  Bagg.  (Eccl  1 214.  •  Given  post. 

'Clark  v.  Lear,  stated  in  opinion  In  Cartwright  v.  Cartwright,  1   Phill.  (J0 
1119). 
4  Morgan  v.  Boys,  Taylor,  Med.  Jurispr.,  2<I  (Amer.)ed  555. 
*  Austen  v.  Graham,  8  Moore,  I'.  C.  498. 


24  TESTAMENTARY   INCAPACITY. 

2.  Testators  may,  if  mentally  competent,  dispose  of  their  prop- 
erty as  they  see  tit.  They  may  be  capricious,  harsh,  and  even 
cruel  in  their  scheme  of  disposition,  and  this  mere  fact  will  not 
invalidate  the  will.1  No  testator  is  bound  to  act  kindly  or  even 
justly  or  equitably  in  making  his  will.2  But  though  this  is  true, 
yet  evidence  of  cruelty  or  harshness  may  obviously  be  carried  so 
far  as  to  suggest  or  even  to  prove  insanity  as  their  necessary 
source.3 

3.  The  fact  that  testator  himself  was  odd  or  eccentric,  or  enter- 
tained queer,  unusual,  or  even  extraordinary  views  or  beliefs,  does  not 
necessarily  involve  testamentary  incapacity.4  The  essential  ques- 
tion is,  first,  whether  his  views  were  the  result  of  insane  delusion, 
as  already  defined,  and,  if  so,  whether  they  were  or  might  have 
been  influential  factors  in  determining  the  provisions  of  the  will 
according  to  principles  already  discussed. 

Illustrations. 
Insanity  is  not  necessarily  involved  in  testator's  belief,  for  ex- 
ample, in 

(a).  Witches,6 

(b).   Ghosts,6 

(c).  "  Spiritualism,"  7 

(d).  Metempsychosis.8 

1  Horn  v.  Pullman,  72  N.  Y.  269;  Brown  v.  Ward,  53  Md.  376  (392),  as 
to  which  see  note  to  Merrill  v.  Rolston,  given  post;  see  Boughton  v. 
Knight,  L.  R.  3  P.  &  D.  64;  Dew  v.  Clark,  3  Add.  90;  Snider  v.  Burks  (Ala.), 

4  So.  Rep.  225;   Potter  v.  Jones,  20  Ore.  239  ;  Middleditch  v.  Williams,  45 
N.  J.  Eq.  726;  Foster's  Estate,  142  Penn.  St.  62. 

■  Hoerth  v.  Zable  (Ky.),  17  S.  W.  Rep.  360. 

3  Merrill  v.  Rolston,  5  Redf.  220;  Dew  v.  Clark,  3  Addams,  90;  Matter  of 
Budlong,  126  N.Y.  423. 

4  Bull  v.  Wheeler,  6  Dem.  (N.Y.)  123;  Merriam's  Will,  16  N.Y.  Supp.  738. 

5  Leech  v.  Leech,  5  Clark  (Pa.)  86;  affi'd  9  Harr.  67;  Addington  v.  Wilson, 

5  Ind.  137;  Lee  v.  Lee,  4  M'Cord  (S.  Car.)  183;  Schildnecht  v.  Rompf.  (Ky.), 
4  S.  W.  Rep.  235. 

6  Thompson  v.  Thompson,  21  Barb.  107. 

1  Robinson  v.  Adams,  62  Me.  369;  Will  of  Smith,  52  Wis.  543;  Otto  v.  Doty, 
61  la.  23;  Keeler's  Will,  3  N.Y.  Supp.  629;  Middleditch  v.  Williams,  45  N.  J. 
Eq.  726;  Brown  v.  Ward,  53  Md.  376,  396.  But  there  may  be  such  subjection 
to  the  medium's  influence  as  to  constitute  undue  influence.  Thompson  v. 
Hawks,  14  Fed.  R.  902. 

8  Bonard's  Will,  16  Abb.  Pr.  (N.  S.)  128. 


DEGREE   OF  INTELLIGENCE  REQUIRED.  25 

DEGREE  OF  INTELLIGENCE  REQUIRED. 
Executor  of  H amblin  Converse  v.  Era§tus  Converse. 

Supreme  Court  op  Vermont,  1849. 
(21  Vt.  168.) 

Appeal  from  a  decree  of  the  probate  court,  allowing  the  will  of 
Hamblin  Converse.  Trial  by  Jury,  December  Term,  1848.  Ben- 
nett, J.,  presiding. 

The  court,  at  the  trial,  among  other  things  not  objected  to,  in- 
structed the  jury  that  the  validity  of  the  will  in  question  must 
depend  upon  the  fact,  whether  the  testator  had  sufficient  mental 
capacity  to  execute  it  at  the  time  it  was  executed  ;  and  that,  to 
give  it  effect,  he  must  then  have  been  of  sound  disposing  mind  ;  but 
that  this  did  not  in  any  way  imply  that  the  powers  of  the  mind 
must  not  have  been  weakened  or  impaired  by  disease  or  old  age  ; 
and  in  regard  to  the  degree  of  capacity,  which  the  jury  must  be 
satisfied  the  testator  possessed  at  the  time  of  making  the  will,  the 
court  told  the  jury,  that  it  would  not  be  sufficient  that  he  might 
be  able  to  comprehend  and  understand  a  question  which  might  be 
propounded  to  him,  and  answer  it  in  a  rational  manner  ;  nor  was  it 
necessary  that  he  should  have  such  a  capacity  of  mind  as  would 
justify  his  engaging  in  complex  and  intricate  business ;  but  that 
the  jury  must  be  satisfied,  in  order  to  justify  them  in  establishing 
the  will,  that  the  testator,  when  he  made  it,  was  capable  of  know- 
ing and  understanding  the  nature  of  the  business  he  was  then  en- 
gaged in,  and  the  elements  of  which  the  will  was  composed,  and 
the  disposition  of  bis  property,  as  therein  provided  for,  both  as  to 
the  property  he  meant  to  dispose  of  by  his  will,  and  the  persons 
to  whom  he  meant  to  convey  it,  and  the  manner  in  which  it  was 
to  be  distributed  between  them  ;  and  that,  if  they  found  all  this, 
it  should  be  found  that  he  had  sufficient  capacity  to  make  the  will 
in  question,  but  otherwise  not. 

The  jury  returned  a  verdict  establishing  the  will.     Exceptions. 

The  opinion  of  the  coma,  on  appeal,  was  delivered  by 

"RedJU  /'/.  J.    The  Bubjecl  involved  in  this  case  is  one  of  some 

difficulty.      It  ifl  Dot  easy  to  lay  down   any  precise   rule,  as  to  what 


26  TESTAMENTARY   INCAPACITY. 

exact  amount  of  mental  capacity  is  sufficient  to  enable  one  to  dispose 
of  property  by  will.  The  rule  laid  down  by  the  judge  in  this  case,  in 
summing  up  to  the  jury,  seems  to  have  been  rather  a  medium  one, 
rather  sensible  and  judicious ;  and  if  we  reversed  the  judgment, 
we  could  hardly  expect  to  prescribe  a  safer  or  more  intelligible 
one.  Every  man  will  have  his  own  mode  of  expressing  the  thing. 
The  rule  of  one  is  very  little  guide  to  another. 

I  have  myself  usually  told  a  jury,  in  these  cases,  that  less  mind 
is  ordinarily  requisite  to  make  a  will  than  a  contract  of  sale,  under- 
standingly,  for  the  reason  that  in  contracts  of  sale  there  are  usually 
two  parties,  and  some  degree  of  antagonism  between  their  interests 
and  efforts ;  so  that  here  mind  is  opposed  to  mind,  and  conse- 
quently it  is  somewhat  more  difficult  to  see  clearly  the  just  bearing 
of  all  the  relations  presented  than  under  the  common  circum- 
stances of  making  a  will,  where  one  is  free  to  act  upon  his  own 
perceptions  merely.  But  this  is  not  always  the  case  in  making  a 
will.  One  may  be  beset  by  an  army  of  harpies  in  the  shape  of 
hungry  expectants  for  property,  altogether  more  perplexing  than  the 
ordinary  circumstances  attending  a  disposition  of  property  by 
sale. 

But  it  may  be  safe,  no  doubt,  to  affirm  that,  in  making  any  con- 
tract understandingly,  one  must  have  something  more  than  mere 
passive  memory  remaining.  He  must  undoubtedly  retain  suffi- 
cient active  memory  to  collect  in  his  mind,  without  prompting, 
particulars  or  elements  of  the  business  to  be  transacted,  and  to  hold 
them  in  his  mind  a  sufficient  length  of  time  to  perceive,  at  least, 
their  more  obvious  relations  to  each  other,  and  be  able  to  form 
some  rational  judgment  in  relation  to  them.  The  elements  of 
such  a  judgment  should  be  the  number  of  his  children,  their  de- 
serts, with  reference  to  conduct  and  capacity,  as  well  as  need,  and 
what  he  had  before  done  for  them,  relatively  to  each  other,  and 
the  amount  and  condition  of  his  property,  with  some  other  things 
perhaps.  The  capability  of  men  in  health  to  form  correct  judg- 
ment in  such  matters  is  no  doubt  very  unequal,  and,  when  there 
is  no  inherent  incongruity  in  the  will  itself,  and  no  just  ground  to 
suspect  improper  influence,  juries  are,  and  perhaps  should  be,  very 
liberal  in  sustaining  testamentary  dispositions.  But  there  must 
undoubtedly  be  some  limit.  When  one  is  confessedly  in  a  condi- 
tion to  be  constantly  liable  to  commit  the  most  ludicrous  mistakes 


BLIND   TESTATOR.  27 

in  regard  to  the  most  simple  and  familiar  subjects,  he  ought  not 
to  and  cannot  make  a  will. 
Judgment  affirmed.' 

BLIND  TESTATOR. 
§ilas  Ray  et  al.  v.  Hill  &  Archer,  Ex'rs  of  Calvert. 

South  Carolina  Court  of  Appeals,  1848. 

(3  Strobh.  L.  297.) 

Probate  of  Will. 

It  appeared  by  the  testimony  that  at  the  time  of  executing  the 
will  testator  was  blind.  From  a  verdict  establishing  the  will,  the 
contestants  appealed,  and  made  this  motion  for  a  new  trial. 

Evans,  J.,  delivered  the  opinion  of  the  Court: 

"The  questions  argued  in  this  case  are:  1st.  Can  a  blind  man 
make  a  will?  [The  other  questions,  which  relate  to  the  due  exe- 
cution of  the  will,  are  immaterial  here.] 

"  1.  it  may  be  true,  as  stated  in  the  argument  by  the  appellant's 
counsel,  that  there  is  no  reported  case  in  which  it  has  been  decided 
that  a  blind  man  may  make  a  will,  but  the  proposition  is  affirmed  in 
all  the  elementary  writers,  and  wherever  spoken  of  is  assumed  as 
an  undeniable  fact.  In  Williams  on  Executors,  16,  it  is  said  a 
k  Mind  man  may  make  a  will,  but  certainly  there  is  more  difficulty 
in  proving  the  requisites  of  the  statute  than  in  the  case  of  one  who 
can  see.'  In  the  case  of  Neil  v.  Neil  [1  Leigh  (Va.)  6],  and  in 
our  own  case  of  Reynolds  v.  Reynold*  (  1  Spcers  L.  253],  the  fad 
that  a  blind  man  may  make  a  will  is  assumed,  and  referred  to  as 
illustrating  the  meaning  of  the  requirement  of  the  statute  that  the 
will  must  be  attested  and  subscribed  in  the  presence  of  the  testa- 
tor. This  class  of  persons  an;  not  excepted  by  the  Act,  as  infants, 
femes  covert^  and    persons  /">//   compos  mentis  are,  unless   tl 

COme    within    the    last    description,  a    proposition  which   I   presume 

none  will  affirm.     Even  among  those  who  are  born  blind,  instances 
an-  not  wanting  of  the  highest  degree  of  mental  culture  and  attain 
in. -lit.  even  in  those   ciences  where  it  would  seem  sight  was  of  the 
greatest  importance,  and  among  those  who  have  become  Mind  from 


For  :i  more  elaborate  Btatemenl  <>r  the  required  soundness  <>r  mind,  see 
ightou  v.  Knight,  pott.    Bee  al  o  I."  >'<  N.  -I    Bq.  198;  also  ante, 

p.  l  .\  and  ca  i    cited. 


28  TESTAMENTARY   INCAPACITY. 

disease  or  accident  are  to  be  found  some  of  the  greatest  names  in 
ancient  or  modern  times.  I  think,  therefore,  we  may  safely  con- 
clude that  it  is  settled  law  that  mere  blindness  does  not  incapac- 
itate a  man  from  making  a  will,  and  if  no  adjudged  case  on  the 
point  is  to  be  found  it  is  because  no  one  ever  doubted  it  before." 

[The  court  then  consider  the  other  questions  raised — namely, 
whether  the  testator  duly  signed  the  will,  and  whether  the  wit- 
nesses subscribed  it  in  his  presence,  and  find  on  both  points  in  the 
affirmative.] 

All  concur.     Motion  denied. 


BLIND  TESTATOR— PROOF  OF  EXECUTION. 
Longchamp  on  the  Demise  of  Goodfellow  v.  Fish. 

English  Court  of  Common  Pleas,  1807. 
(5  B.  &  P.  415.) 

Ejectment.     Verdict  for  lessor  of  plaintiff,  sustaining  the  will. 

On  a  former  day  in  this  term  a  rule  nisi  for  setting  aside  the 
verdict,  and  having  a  new  trial,  was  obtained  by  Shepherd,  Serjt., 
on  the  ground  that,  the  testator  being  blind,  the  will  should  have 
been  read  over  to  him.  It  appeared  that  he  had  himself  dictated 
the  will  two  months  before  execution,  and  it  was  then  read  to  him, 
but  was  not  read  at  the  time  of  execution. 

Rooke,  J.  There  is  not  the  least  imputation  of  fraud  in  this 
case  ;  but  the  application  made  to  us  to  set  aside  the  will  is  founded 
on  mere  technical  reasoning.  Now,  unless  compelled  so  to  do  by 
the  provisions  of  the  statute,  I  never  would  set  a  will  aside  on 
mere  technical  reasoning.  The  statute  only  requires  that  the  wit- 
nesses shall  attest  their  having  seen  the  testator  sign  the  will,  and 
that  the  witnesses  in  this  case  do  attest.  If  a  fair  ground  for  pre- 
suming fraud  were  laid  by  the  evidence,  the  circumstance  of  the 
testator  being  blind  would  most  materially  strengthen  that  pre- 
sumption. 

[The  report  also  gives  opinions  to  the  same  effect  as  that  of 
Rooke,  J.,  by  Heath,  J.,  and  Chambre,  J.] 

Rule  discharged. 


EXTREME   OLD   AGE.  29 

EXTREME   WEAKNESS. 
Ilutliorn  and  others  v.  King. 

Massachusetts  Supreme  Judicial  Court,  1811. 

(8  Mass.  371.) 

Appeal  from  decree  allowing  the  last  will  of  Mary  JSTorris,  de- 
ceased. Among  the  reasons  of  appeal,  one  was,  that  the  deceased 
was  not  of  sane  mind  at  the  time  of  executing  the  will,  and  on 
this  an  issue  was  formed  to  the  country. 

On  trial  it  appeared  that  the  scrivener  was  called  in  at  11  o'clock 
in  the  morning  on  the  21st  of  March,  and  received  from  testatrix 
directions  as  to  preparing  her  will.  She  was  then  very  ill,  and 
continued  sinking  until  0  o'clock  in  the  evening,  when  she  exe- 
cuted the  will,  and  at  a  quarter-past  8  o'clock  the  same  evening 
expired.  The  reporter  states  the  instructions  of  the  court  as 
follows: 

"  After  the  examination  was  finished  the  evidence  was  minutely 
summed  up  to  the  jury  by  Serf*/ trick,  J.,  and  the  jury  were  in- 
structed by  him  {Sewell  and  Parker,  justices,  expressly  concur- 
ring), that  if  they  should  be  of  opinion  that  the  testatrix,  at  the 
time  of  dictating  the  will,  had  sufficient  discretion  for  that  pur- 
pose,  and  that,  at  the  time  of  executing  the  will,  she  was  able  to 
recollect  the  particulars  which  she  had  so  dictated,  they  might  find 
their  verdict  that  she  was  of  sound  and  disposing  mind  and  mem- 
ory at  the  time  of  executing  the  will.  And  they  found  accord- 
ingly; and  the  will  was  proved,  approved,  and  allowed  by  the 
court." 

EXTREME  OLD  AGE. 

ColliiiN  v.  Townley  and  Johnson. 

New  Jersey  Prerogative  Coubt,  1871. 

(21   X.  .1.  I'm.  858.) 

The  Orphans'  Court  admitted  to  probate  the  will  of  Sarah  Col- 
lin-, deceased. 

Appeal. 

Tin.  Ordinary.  The  testatrix  was  ninety-eighl  years  of  age  at 
the  time  ehe  made  the  will  in  question.  [Jpon  an  examination  of 
the  evidence  this  appears  to  be  the  only  ground  for  filing  a  caveat 
againsl  the  probate  of  her  will.     No  unsoundness  or  imbecility  "f 


30  TESTAMENTARY   INCAPACITY. 

mind  is  shown  of  a  kind  that  approaches  to  defect  of  testamentary 
capacity.  Nor  is  there  any  proof  of  any  fraud,  circumvention,  or 
undue  influence  in  procuring  the  will.  There  is  no  ground  to 
sustain  the  appeal  against  the  admission  of  the  will  to  probate. 

The  caveator  is  a  son  of  testatrix ;  he  resided  not  far  from  his 
mother,  and  knew  her  situation  and  capacity.  More  than  one 
unsuccessful  attempt  to  procure  an  inquisition  of  lunacy  against  her 
in  the  last  years  of  her  life  had  been  made  and  failed.  Of  all  this 
he  had  full  knowledge.  The  will  gave  the  bulk  of  the  property 
of  testatrix  to  one  child,  and  very  little  to  her  other  children ;  yet 
this  child  was  a  daughter,  with  whom  she  had  lived  for  many 
years,  and  who  had  taken  care  of  her  before  and  after  she  acquired 
her  property  upon  the  death  of  her  son  Hugh. 

There  may  exist  sufficient  reason  for  examining  into  the  valid- 
ity of  a  will  made  by  a  mother  in  favor  of  a  daughter  with  whom 
she  has  lived  for  years,  especially  when  the  testatrix  is  of  the  age 
of  Mrs.  Collins.  Her  other  children  have  the  right  to  require 
that  it  be  clearly  proved  that  she  executed  the  will,  understanding 
that  it  was  her  testamentary  act.  When  they  go  beyond  this,  and 
continue  litigation  by  a  protracted  inquiry  into  the  capacity  of  the 
testatrix,  it  is  in  the  discretion  of  the  court  to  award  costs  against 
them,  or  to  refuse  any  allowance  of  costs,  as  they  think  the  con- 
duct of  the  contestants  may  justify  by  the  evidence  in  the  case. 
The  Orphans'  Court  were  of  opinion  that  sufficient  reason  for  con- 
tinuing the  contest  did  not  appear,  and  therefore  refused  to  allow 
costs.  I  concur  in  that  opinion,  and  therefore  affirm  the  decree 
in  that  particular  also. 

(The  ordinary  here  discusses  and  approves  the  disposition  of  the 
matter  of  costs  below.) 

The  proceedings  in  the  Orphans'  Court  are  in  all  things  affirmed. 


DEAF-AND-DUMB  TESTATOR— INSUFFICIENT  PROOF. 
In  the  Good's  of  Francis  Owston  (deceased),  on  Motion, 

English  Court  op  Probate,  1862. 
(2  Sw.  &  Tr.  461.) 

Francis  Owston,  a  labourer,  who  died  on  the  6th  of  January, 
1862,  was  deaf  and  dumb,  and  could   neither  read    nor  write. 


DEAF-AXD-DUMB   TESTATOR. — INSUFFICIENT  PROOF.       31 

Ou  the  7th  of  January,  1S57,  he  sent  for  Robert  Bradley,  an  ac- 
quaintance of  forty  years'  standing,  who  was  able  to  communicate 
with  him  by  signs  and  motions,  to  assist  him  in  making  his  will. 
On  the  motion  for  probate,  affidavits  were  offered  setting  forth 
that  testator  then  informed  said  Bradley  of  his  wishes  by  signs  and 
motions  perfectly  understood  by  both  of  them  ;  that  Norwood  Law- 
son,  since  deceased,  a  school-master,  was  present,  and  wrote  out  the 
will  according  to  these  instructions;  that  it  was  then  explained  to 
testator  by  signs,  and  approved  and  signed  by  him;  and  that  he 
afterwards  acknowledged  it  before  the  witnesses  and  asked  them 
to  attest  it,  all  by  signs. 

Dr.  Spmks  moved  for  probate  of  the  will  to  be  granted  to  Rich- 
ard Mosey  Owston,  the  sole  executor  named  therein. 

Sir  C.  Cresswell:  This  is  a  very  singular  case.  Robert  Brad- 
lev  does  not  state  the  nature  of  the  signs  by  which  he  communi- 
cated with  the  testator,  whether  he  conversed  with  his  fingers  or 
not.  It  does  not  appear  that  he  was  habitually  conversant  with 
deaf-and-dumb  people.  I  shall  require  a  further  affidavit  of  the 
nature  of  the  signs  and  motions  with  which  Bradley  communi- 
cated with  the  deceased  before  I  grant  the  motion.  I  should  like, 
also,  to  have  the  consent  of  the  party  entitled  in  the  event  of  in- 
testacy.    Let  the  motion  stand  over. 

Dr.  Spinks  renewed  the  motion  on  the  following  further  affi- 
davit of  Robert  Bradley:  "That  my  late  father  was  the  occupier 
of  a  farm  at  Thorneholme,  in  the  county  of  York,  comprising 
about  -loo  acres  of  land,  for  nineteen  years,  and  after  leaving  that 
farm  removed  to  Wetwang,  in  the  same  county,  and  occupied  a 
farm  there  for  eleven  years,  and  that  the  said  Francis  Owston.  the 
testator,  who  was  deaf  and  dumb,  was  a  labourer  in  the  employ- 
ment of  my  said  father  at  Thornholme  and  Wetwang  for  a  period 
of  twenty-five  years,  namely,  from  the  year  L814  to  the  year  L840, 
and  dining  pari  of  thai  period  resided  in  the  house  of  my  said  fa- 
r.     Thai   the  said  testator  used  to  take  me  to   Burton  Agnes 

School  when   I   Was  a  child,  and   frOU]  seeing  him  daily  I'm-  upwards 

<>f  twenty  pear  .  I  learnt  to  converse  with  him  by  signs  and  mo- 
tion-, making    letter-    on    the   palm  of   my  hand-,  and  by  the  deal 

and-dnmb  alphabet.     Thai  all  my  brothers  and  could  also 

understand  and  converse  with  him  1>  and  motions,  bul  none 

of  them  bo  well  ae  I  could.    That  while  the  .-aid  testator  was  in  the 


32  TESTAMENTARY   INCAPACITY. 

employ  of  ray  said  father,  he  (the  said  testator)  taught  me  to  plough, 
to  shear  sheep,  and  to  play  at  whist,  he  being  a  very  good  whist- 
player.  That  I  frequently  sent  him  on  numerous  errands,  and 
frequently  sent  him  into  my  father's  fields  to  fetch  up  a  particular 
horse,  and  he  has  gone  away  alone  and  brought  it  back  without 
any  other  means  of  information  than  the  sisnis  and  motions  which 

*/  CD 

I  had  used.  That  when  I  marked  with  the  finger  on  the  palm  of 
the  hand  the  name  of  any  person  the  said  testator  was  acquainted 
with,  he  knew  it  directly,  and  would  give  me  to  understand  that 
he  did  so  by  making  signs  indicative  of  the  trade  or  business  of 
such  person.  That  the  said  testator  could  and  did  also  converse 
with  me  by  these  signs  and  motions,  and  give  me  information  as 
to  my  grandfather,  and  told  me  his  age.  That  when  I  attended  at 
the  house  of  the  said  testator  to  interpret  for  him  on  the  making 
of  his  will,  as  mentioned  and  set  forth  in  my  affidavit,  sworn 
herein  on  the  12th  of  February,  1862,  the  said  testator  used  both 
signs  and  letters  on  his  hand ;  he  made  signs  indicating  that  all  his 
money,  furniture,  and  everything  he  possessed  was  to  be  given  to 
his  nephew,  Richard  Mosey  Owston,  who  was  then  present,  and 
marked  his  said  nephew's  initials  on  his  hand,  putting  his  finger 
in  his  mouth,  which  was  a  sign  that  the  person  he  referred  to  was 
a  relation.  The  said  Richard  Mosey  Owston  had  attended  to  the 
said  testator's  business  matters  for  some  time,  and  was  present  at 
the  testator's  request,  and  the  testator  pointed  to  him  as  the  person 
he  wished  to  have  all  his  property.  That  the  said  testator  had 
separate  signs  or  marks  for  gold,  silver,  and  copper ;  for  gold  he 
touched  his  neckerchief,  silver  his  shirt,  and  copper  the  buttons  of 
his  coat.  He  used  all  these  signs,  touched  most  of  the  furniture, 
and  gave  me,  by  aid  of  the  marks  and  signs,  to  understand  they 
were  all  for  his  said  nephew.  When  I  replied  to  that  effect,  he 
understood  at  once,  and  expressed  himself  satisfied.  That  I  am 
informed  (and  believe  it  to  be  true)  that  the  only  personal  estate 
of  which  the  said  testator  died  possessed  consisted  of  his  household 
furniture  (of  trifling  value)  and  the  sum  of  £50  due  on  note." 
(Here  follows  a  statement  concerning  testator's  next  of  kin  and  his 
relations  with  them.) 

Sir  C.  Ckesswell  :  I  cannot  consider  this  as  a  sufficiently  satis- 
factory account  of  the  method  in  which  the  instructions  of  the  de- 
ceased are  said  to  have  been  taken.     I  am  not  inclined  to  let  pro- 


DEAF-AND-DUMB   TESTATOR. — SUFFICIENT   PROOF.  33 

bate  of  this  paper  pass  on  motion,  at  least  without  the  consent  of 
the  next  of  kin. 

Motion  rejected. 

[Also  Rollwagen  v.  Rollwagen,  63  K  Y.  504.] 

DEAF-AND-DUMB  TESTATOR.— SUFFICIENT  PROOF. 

In  the  Goods   of  Ceale  (deceased). 

English  Court  of  Probate,  1864. 
(3Sw.  &  Tr.  431.) 

John  Geale,  late  of  Vately,  in  the  county  of  Hants,  yeoman, 
died  on  the  25th  of  January,  1864,  leaving  a  will  of  the  4th  of 
Julv,  1861.  lie  was  deaf  and  dumb,  and  could  neither  read  nor 
write,  and  had  executed  the  will  by  mark. 

Affidavits  of  Martha  Geale,  the  deceased's  widow,  and  of  R.  T. 
Dunning,  a  wine  merchant,  and  Isaac  Hilton,  parish  clerk,  the 
attesting  witnesses,  were  filed.  They  deposed  that  the  deceased 
was  shrewd  and  intelligent  and  possessed  of  considerable  mechani- 
cal skill  and  ingenuity.  The  deponents  had  all  known  him  inti- 
mately tor  more  than  thirty  years,  and  he  was  in  the  habit  of  con- 
versing with  them  and  they  with  him  by  signs,  which  were  well 
understood  by  all  of  them. 

It  appeared  l.v  affidavit  that  the  will  was  drawn  by  a  Mr.  Shep- 
pard,  a  solicitor,  at  the  suggestion  and  requesl  of  testator,  and  ac- 
cording to  testator's  instructions.     On  the  4th  of  duly,  L861,  the 

attesting  witnesses  Were  sent  for;  tin;  deceased  then  by  signs  told 
them  that    he  wa8  about  to   make   his  will  and  wished  them  to  wit  - 

aese  it.  Be  then  produced  the  will  ami  told  them  by  signs  how 
he  wished  to  dispose  of  his  property.  Dunning  then  read  over 
the  will  and  ascertained  th.it  it  was  in  accordance  with  his  instruc- 
tions, and  then  by  signs  explained  to  the  deceased  its  contents  and 
effect,  and  he  by  Bigns  signified  bis  approval. 

Dr.  Spinka  moved  for  probate  on  these  affidavits,  and  cited  In 
ih<  Qoods  of  Owston,  2  Sw.  &  Tr.  HH  [given  «nt,  |.  Bui  Sir  .1. 
I'.  Wilde  declined  to  granl  the  motion  without  further  affidavits 

ting  the  nature  of  the  eigne  used. 

Dr.  Spinka  afterwards  renewed  the  motion  upon  the  joint  affi- 
davil  of  the  widow  and  the  attesting  witne  tes,  which,  in  substance, 
3 


34  TESTAMENTARY   INCAPACITY. 

was  as  follows :  "  The  signs  by  which  deceased  informed  us  that 
the  will  was  the  instrument  which  was  to  deal  with  his  property 
after  his  death  in  case  she  survived  him  were  in  substance,  so  far 
as  we  are  able  to  describe  the  same  in  writing,  as  follows,  viz. : 
The  said  John  Geale  first  pointed  to  himself,  then  he  pointed  to  him- 
self, then  he  laid  the  side  of  his  head  upon  the  palm  of  his  right  hand, 
with  his  eyes  closed,  and  then  lowered  his  right  hand  towards  the 
ground,  the  palm  of  the  same  hand  being  upwards.  These  latter  signs 
were  the  usual  signs  by  which  he  referred  to  his  own  death  or  the 
decease  of  some  one  else.  2.  He  then  touched  his  trousers  pocket 
(which  was  the  usual  sign  by  which  he  referred  to  his  money),  then  he 
looked  all  around  and  simultaneously  raised  his  arms  with  a  sweeping 
motion  all  around  (which  was  the  usual  sign  by  which  he  referred  to 
all  his  property  or  all  things).  3.  He  then  pointed  to  his  wife,  and 
afterwards  touched  the  ring  finger  of  his  left  hand,  and  then 
placed  the  right  hand  across  his  left  arm  at  the  elbow,  which  lat- 
ter signs  were  the  usual  signs  by  which  he  referred  to  his  wife." 
(Here  follows  a  similar  description  of  the  particular  signs  employed 
by  testator  to  indicate  his  further  wishes.)  "  7.  After  the  testator 
had,  in  the  manner  aforesaid,  expressed  to  us  what  he  intended  to 
do  by  his  said  will,  the  said  B.  T.  Dunning,  by  means  of  the  before- 
mentioned  signs,  and  by  other  motions  and  signs  by  which  we  were 
accustomed  to  converse  with  him,  informed  the  said  testator  what 
were  the  contents  and  effect  of  the  said  will." 

Sir  J.  P.  Wilde  granted  the  motion,  [apparently  because  the 
meaning  assigned  to  the  acts  had  a  rational  connection  with  them]. 


IDIOCY.— EFFECT  OF  SUBSEQUENT  INQUISITION. 

Townsend  v.  Bogart. 

Surrogate's  Court,  New  York  County,  New  York,  1881. 

(5  Redf.  93.) 

Application  for  probate  of  the  will  of  Mary  E.  Hatfield,  deceased, 
dated  September  1,  1869. 

It  was  alleged  by  the  contestant,  among  other  objections,  that 
testatrix  was  not  of  sound  mind.  The  will  gave  all  her  property 
to  Ellen  Bogart,  her  cousin.     Decedent  was  unmarried,  and  at  the 


IDIOCY. — EFFECT   OF   SUBSEQUENT   INQUISITION.  35 

date  of  the  will  was  about  forty  years  old,  and  for  the  previous 
seven  years  had  lived  in  the  family  of  Anderson  Bogart,  the  father 
of  her  cousin  Ellen.  A  sister  of  testatrix  was  an  inmate  of  an  in- 
sane asylum.  Testatrix  was  a  member  of  a  Methodist  Church  in 
New  York  City.  She  was  able  to  do  certain  kinds  of  housework, 
and  keep  her  room  in  order ;  could  tell  a  good  penny  from  a  bad 
one,  and  a  five-cent  piece  from  a  dime,  but  not  a  twenty-five  from 
a  fifty-cent  piece;  and  could  not  tell  time  nor  count  her  fingers; 
and  in  1871,  two  years  after  the  date  of  the  will  as  the  result  of  an 
inquiry  by  the  Supreme  Court,  she  had  been  duly  declared  an  idiot. 
Other  facts  are  stated  in  the  portion  of  the  opinion  given  below. 

('<ilrni,  S.  (after  stating  the  substance  of  the  evidence,  includ- 
ing additional  facts  similar  to  those  above  stated,  and  discussing  a 
number  of  authorities,  including  Bundy  v.  McKnight,  48  hid.  502). 

In  Bundy  v.  McKnight,  above  cited,  the  doctrine  is,  to  my  mind, 
best  expressed,  that  the  law  does  not  undertake  to  test  a  person's 
intelligence,  and  define  the  exact  quality  of  mind  and  memory 
which  a  testator  must  possess  to  authorize  him  to  make  a  will,  yet 
it  does  require  him  to  possess  a  mind  to  know  the  extent  and  value 
of  his  property,  the  number  and  names  of  the  persons  who  are  the 
natural  objects  of  his  bounty;  their  deserts  in  reference  to  their 
conduct  and  treatment  towards  him,  their  capacity  and  necessities; 
that  he  shall  have  sufficient  active  memory  to  retain  all  those  facts 
in  his  mind  long  enough  to  have  his  will  prepared  and  executed; 
and  if  this  amount  of  mental  capacity  is  somewhat  obscure  or 
clouded,  still  the  will  may  be  sustained.  (The  Surrogate  here  dis- 
cusses the  term  non  compos  mentis,  and  also  the  statutory  provi- 
sion  concerning  testamentary  capacity.) 

It  is  true  that  she  appeared  to  recognize  acquaintances,  did  cer- 
tain routine  domestic  work,  remembered  her  sister,  and  felt  un- 
kindly towards  Mrs.  Townsend  for  a  reason  which  she  seemed  not 
to  understand  and  to  entirely  misconceive,  for  she  supposed  that 
Bhe  had  borrowed  money  of  Her  and  had  not  repaid  it,  while  the 
fact  was.  that  the  borrowing  was  of  decedent's  mother,  and  her 
mind  Beeined  to  have  been  materially  prejudiced  against  her  sister 

on  that  account.  It  is  true,  also,  that  she  attended  Sunday-school 
and  church,  and  went    to    familiar    places  alone,  and    made  trilling 

purcha  es  under  the  instructions  of  others ;  that  she  could  repeat  the 

Lord's  Prayer,  remember  a  text  of  the  clergyman,  and  state  some- 


36  TESTAMENTARY   INCAPACITY. 

thing  of  what  he  said  ;  that  she  stated  she  intended  to  give  her  prop- 
erty to  her  second  cousin,  and  that  her  sister  should  not  have  it  for 
reasous  above  stated,  and  because  she  had  neglected  her ;  and  that 
she,  after  its  execution,  stated  that  she  had  made  a  will,  thus  dis- 
posing of  her  property,  and  that  she  went  to  the  attorney  who  drew 
the  will,  and  gave  him  instructions  as  to  what  she  desired  to  do 
with  her  property. 

Taking  all  these  facts  into  consideration,  with  the  other  indis- 
putable facts  proved  by  witnesses  on  both  sides,  that  though  she 
attended  school  for  three  years  she  did  not  learn  to  read  or  write, 
never  learned  to  count  more  than  ten,  could  not  tell  the  time  of 
day  from  clock  or  watch,  could  not  add  or  multiply,  had  no  idea  of 
the  value  of  property,  or  of  money  beyond  ten  cents,  could  not  tell 
where  to  go  when  she  left  the  cars,  and  when  she  went  out  alone 
to  familiar  places  on  familiar  streets,  carried  with  her  a  card  with 
her  address,  lest  she  should  be  lost,  it  being  deemed  necessary  by 
her  friends ;  that  she  was  of  weak  mind,  unable  to  do  or  attend  to 
most  things  which  most  persons  of  ordinary  mind  and  intelligence 
could  do  ;  that  she  was  easily  lost ;  could  not  reckon  money  ;  had 
no  idea  or  understanding  of  the  amount  or  the  value  of  her  prop- 
erty, the  value  or  worth  of  anything, — it  is  quite  apparent  that  her 
intellectual  capacity  was  not  equal  to  that  of  an  ordinary  intelligent 
child  of  ten  years  of  age. 

How  can  it  be  said  that  she  had  any  intelligent  understanding 
of  the  value  of  her  property  which  she  was  disposing  of  by  will, 
when  she  had  no  appreciation  of  values  ?  That  fact  alone  seems 
to  indicate  that  she  could  not  have  known  whether  she  was  dispos- 
ing of  property  worth  five  dollars  or  five  millions. 

It  is  very  difficult  to  say  that  decedent  was  not  laboring  under  an 
obvious  delusion  which  affected  her  testamentary  disposition  in  re- 
spect to  her  sister,  Mrs.  Townsend,  unless  she  was  mentally  incapa- 
ble of  appreciating  the  difference  between  the  obligation  of  that 
sister  to  her  mother  by  reason  of  borrowing  $2,000  and  that  to  her- 
self ;  and  it  is  equally  difficult  to  reconcile  her  will  with  an  intelli- 
gent appreciation  by  her  of  the  relation  she  bore  to  her  sister,  who 
was  in  the  insane  asylum,  and  her  duty  towards  her,  and  her  just 
claims  upon  her  bounty. 

The  circumstance  that  she  went  to  the  attorney  and  gave  instruc- 
tions respecting  her  will  is  very  materially  weakened  by  the  fact 


IDIOCY. — EFFECT   OF   SUBSEQUENT   INQUISITION.  37 

that  she  was  accompanied  by  Mr.  Bogart  and  the  devisee,  and  that 
the  will  was  of  the  simplest  character,  and  its  terms  easily  fixed 
upon  her  mind  by  a  little  tutoring-. 

These  circumstance-,  aside  from  the  proceedings  in  idiocy,  seem 
to  me  to  forbid  the  admission  of  this  will  to  probate,  but  when 
taken  in  conjunction  with  those- proceedings  and  their  result, 
though  they  are  obviously  neither  conclusive  nor  binding  upon  this 
court  in  the  determination  of  this  case,  it  seems  to  be  impossible  to 
escape  the  conviction  that  decedent,  when  she  made  this  instru- 
ment, was  not  possessed  of  sufficient  mental  capacity  to  understand 
theeffeet  of  the  disposition  and  the  condition  or  value  of  her  prop- 
erty,  or  the  just  claims  of  her  sisters  upon  her  bounty.  For  be  it 
remembered  that  these  proceedings  were  substantially  sustained  by 
the  testimony  of  Mr.  Bogart  and  one  of  his  daughters,  and  that  all 
the  efforts  to  explain  and  escape  the  force  of  the  testimony  on  the 

and  that  they  did  not  understand  the  nature  of  the  proceedings 
and  it-  purpose,  in  no  way  controvert  the  facts  to  which  they 
testified  ;  and  the  effort  to  belittle  the  significance  of  that  adjudica- 
tion on  account  of  Dr.  Warner  not  being  present,  and  the  hasty 
disposition  of  the  case,  signally  fails,  for  the  testimony  of  Mr. 
Boese,  one  of  the  commissioners,  and  that  of  Mr.  Man,  an  experi- 
enced and  intelligent  lawyer,  who  made  a  careful  examination  of 
the  decedent  before  the  proceedings  were  taken,  and  had  two  inter- 
view.-, Bhow  that  the  proceedings  were  conducted  with  proper  pre- 
caution, and  leave  no  doubl  in  my  mind  that  the  finding  of  the  jury 
was  in  accordance  with  the  fact,-. 

If  thi-  were  a  case  of  lunacy  it  might  very  well  be  that  the  in- 
quisition in  lunacy,  two  years  after  the  execution  of  the  will  in 
question,  might  not  be  very  significant,  for  the  reason  that  lunacy 
mighl  l»e  the  result  of  disease  or  Budden  accident,  or  development 

of  hereditary  mental  tainl  ;    but  the  imbecility  of   mind  which  was 

manifested  in  the  case  "I  the  decedent  was  not  one  of  sudden  de- 
velopment, and  some  of  the  proponent's  witnesses  indicate  that.  ii. 

their  opinion,  after  the  death  of  her  mother  and  under  the  care  "' 

the  Bogart  family,  she  improved  in  her  mental  condition,  and  its  man' 

ifestation;   and   I  am  of  t  he  opinion  that,  if  the  decedent  w  a-  an  idiot, 

when  the  inquisition  was  had.  it  is  impossible,  on  the  prool  in  this 
case  ami  from  the  nature  of  the  affliction,  that  she  could  have  been 
of  sound  and  disposing  mind  when  this  instrument  was  executed. 


38  TEST  AMENTA  It  Y    INCAPACITY. 

I  am  of  the  opinion  that,  from  the  proof  in  this  case,  decedent 
was  not  of  sound  and  disposing  mind  when  she  executed  the  in- 
strument propounded,  and  that  for  that  reason  the  will  should  be 
denied  probate. 

Decreed  accordingly. 

INSANE  DELUSIONS. 
Houghton  and  Marston  v.   Knight  and  Otlier§. 

English  Court  op  Probate,  1873. 
(L.  R.  3  P.  &D.  64.) 

The  plaintiffs,  Sir  Charles  BoughtOn  and  Mr.  Marston,  pro- 
pounded the  will  of  John  Knight,  of  Henley  Hall,  Shropshire, 
dated  the  27th  of  January,  1869.  The  deceased  died  on  the  7th 
of  September,  1872.  The  defendants,  the  sons  of  the  deceased, 
pleaded  that  the  deceased  was  not  of  sound  mind,  memory,  and 
understanding  on  the  27th  of  January,  1869,  the  day  the  will  bears 
date.  Issue  was  joined  on  this  plea.  The  property  of  the  deceased 
consisted  of  the  Henley  Hall  estate,  the  net  rental  value  of  which 
was  £1,500  per  annum,  and  personalty  to  the  value  of  £62,000. 
By  the  will  propounded  Sir  Charles  Boughton  and  his  sons  were 
the  devisees  of  the  whole  real  estate ;  the  testator's  son,  James 
Thomas,  had  a  legacy  of  £8,000,  his  son  Charles  £7,000,  and  John 
a  life  interest  in  £10,000.  The  children  of  his  deceased  daughter, 
Henrietta  Kent,  were  not  mentioned  in  the  will. 

The  trial  extended  over  fourteen  days  in  March,  1872,  before 
Sir  J.  Hannen  and  a  special  jury. 

March  31.  Sir  J.  Hannen,  in  summing  up,  made  the  following 
among  other  observations  on  the  subject  of  testamentary  capacity : 
The  sole  cniestion  in  this  case  which  you  have  to  determine  is,  in 
the  language  of  the  record,  whether  Mr.  John  Knight,  when  he 
made  his  will  on  the  27th  of  January,  1869,  was  of  sound  mind, 
memory,  and  understanding.  In  one  sense,  the  first  phrase,  sound 
mind,  covers  the  whole  subject;  but  emphasis  is  laid  upon  two 
particular  functions  of  the  mind,  which  must  be  sound  in  order  to 
create  a  capacity  for  the  making  a  will ;  there  must  be  a  memory 
to  recall  the  several  persons  who  may  be  fitting  objects  of  the  tes- 
tator's bounty,  and  an  understanding  to   comprehend  their  rela- 


INSANE  DELUSIONS.  39 

tionship  to  himself  and  their  claim  upon  him.  But  for  conven- 
ience the  phrase  "sound  mind"  may  be  adopted,  and  it  is  the  one 
I  shall  make  use  of  throughout  my  observations.  Now  you  will 
naturally  expect  from  me  a  definition,  or  at  any  rate  an  explana- 
tion of  the  legal  meaning  of  the  words  "  sound  mind,"  and  I  will 
endeavour  to  give  you  such  assistance  as  I  am  able,  either  from  my 
own  reflections  on  the  subject,  or  by  the  aid  of  what  has  been  said 
by  other  judges,  whose  duty  it  has  been  to  consider  this  important 
question  before  me.  I  must  commence,  however,  by  telling  you 
what  these  words  do  not  mean.  They  do  not  mean  a  perfectly 
balanced  mind.  If  so,  which  of  us  would  be  competent  to  make  a 
will  ?  Such  a  mind  would  be  free  from  all  influence  of  prejudice, 
passion,  and  pride.  But  the  law  does  not  say  that  a  man  is  incapaci- 
tated from  making  a  will  if  he  proposes  to  make  a  disposition  of  his 
property  moved  by  capricious,  frivolous,  mean  or  even  bad  motives. 
"We  do  not  sit  here  to  correct  injustice  in  that  respect.  Our  duty 
is  limited  to  this:  to  take  care  that  that,  and  that  only,  which  is 
the  true  expression  of  a  man's  real  mind,  shall  have  effect  given  to 
it  as  his  will.  In  fact,  this  question  of  justice  and  fairness  in  the 
making  of  wills  in  a  vast  majority  of  cases  depends  upon  such  nice 
and  fine  distinctions  that  we  cannot  form,  or  even  fancy  that  we 
can  form,  a  just  estimate  of  them.  Accordingly,  by  the  law  of 
England,  every  one  is  left  free  to  choose  the  person  upon  whom  he 
will  bestow  his  property  after  death,  entirely  unfettered  in  the  se- 
lection In-  may  think  proper  to  make.  He  may  disinherit,  either 
wholly  or  partially,  his  children,  and  leave  his  property  to  stran- 
gers to  gratify  his  spite,  or  to  charities  to  gratify  his  pride,  and  we 
mnsl    give  eflfecl    to   his  will,  however  much  we  may  condemn  the 

coarse  he  In-  pursued.  In  this  respect  the  law  of  England  differs 
from  that  of  other  countries.1  It  i.-  thought  better  to  risk  the  chance 
of  :m  abuse  of  the  power  arising  from  such  liberty  than  to  deprive 
men  of  the  righl  to  make  such  a  selection  as  their  knowledge  of 
the  characters,  of  the  past  history  and  future  prospects  of  their 
children  or  other  relatives  ma\  demand,  and  we  must  remember 
thai  we  are  here  to  administer  the  law  of  England,  and  we  musl 
do1  attempt  to  correel  its  application  in  a  particular  case  by  know 

1  The  law  in  our  States  i>  in  this  respect  Hke  thai  <>f  England,  Bave  for  our 
Btatute   n  tricting  giftt  to  charity,  etc     See  tndex,  "  Restrictions." 


40  TESTAMENTARY   INCAPACITY. 

ingly  deviating  from  it.  I  have  said  that  we  have  to  take  care 
that  effect  is  given  to  the  expression  of  the  true  mind  of  the  tes- 
tator, and  that,  of  course,  involves  a  consideration  of  what  is  the 
amount  and  quantity  of  intellect  which  is  requisite  to  constitute 
testamentary  capacity.  I  desire  particularly  now,  and  throughout 
the  consideration  which  you  will  have  to  give  this  case,  to  impress 
upon  your  minds  that,  in  my  opinion,  this  is  eminently  a  practical 
question,  one  in  which  the  good  sense  of  men  of  the  world  is  called  into 
action,  and  that  it  does  not  depend  solely  on  scientific  or  legal  defi- 
nition. It  is  a  question  of  degree  to  be  solved  in  each  particular 
case  by  those  gentlemen  who  fulfill  the  office  which  you  have  now 
imposed  on  you,  and  on  this  point  for  accuracy  I  should  wish  to 
quote  the  words  themselves  of  Lord  Cran  worth  in  Boyse  v.  Ross- 
borough  : '  "  On  the  first  head  the  difficulty  to  be  grappled  with 
arises  from  the  circumstance  that  the  question  is  almost  always  one 
of  degree.  There  is  no  difficulty  in  the  case  of  a  raving  madman  or  a 
drivelling  idiot  in  saying  that  he  is  not  a  person  capable  of  dispos- 
ing of  property ;  but  between  such  an  extreme  case  and  that  of  a 
man  of  perfectly  sound  and  vigorous  understanding,  there  is  every 
shade  of  intellect,  every  degree  of  mental  capacity.  There  is  no 
possibility  of  mistaking  midnight  for  noon,  but  at  what  precise  mo- 
ment twilight  becomes  darkness  is  hard  to  determine."  In  consid- 
ering the  question,  therefore,  of  degree,  large  allowance  must  be 
made  for  the  difference  of  individual  character.  Eccentricities,  as 
they  are  commonly  called,  of  manner,  of  habits  of  life,  of  amuse- 
ments, of  dress,  and  so  on,  must  be  disregarded.  If  a  man  has  not 
contracted  the  ties  of  domestic  life,  or  if,  unhappily,  they  have 
been  severed,  a  wide  deviation  from  the  ordinary  type  may  be  ex- 
pected, and  if  a  man's  tastes  induce  him  to  withdraw  himself  from 
intercourse  with  friends  and  neighbours,  a  still  wider  divergence 
from  the  ordinary  type  may  be  expected.  We  must  not  easily 
assume  that  because  a  man  indulges  his  humours  in  unaccustomed 
ways  that  he  is  therefore  of  unsound  mind.  We  must  apply  some 
other  test  than  whether  or  not  the  man  is  very  different  from  other 
men.  Now  the  test  which  is  usually  applied,  and  which  in  almost 
every  case  is  found  sufficient,  is  this :  Was  the  man  labouring  un- 
der delusion  %     If  he  laboured  under  delusion,  then  to  some  extent 


1  6  H.  L.  C.  at  p.  45. 


INSANE   DELUSIONS.  41 

his  mind  must  be  unsound.  But  though  we  have  thus  narrowed 
the  ground,  we  have  not  got  free  altogether  from  difficulty,  because 
the  question  still  arises,  What  is  a  delusion?  On  this  subject  an 
eminent  judge  who  formerly  presided  in  the  Court,  the  jurisdic- 
tion of  which  is  now  exercised  here,  Sir  J.  Nicholl,  in  the  famous 
case  of  Dew  v.Clark  and  Clark,1  says:  "One  of  the  counsel  (Dr.  Lush- 
ingtou)  accurately  expressed  it ;  it  is  only  the  belief  of  facts  which  no 
rational  person  would  have  believed  that  is  insane  delusion."  Gen- 
tlemen, in  one  sense,  that  is  arguing  in  a  circle,  for,  in  fact,  it  is 
only  saying  that  a  man  is  not  rational  who  believes  what  no  rational 
man  would  believe;  but,  for  practical  purposes,  it  is  a  sufficient 
definition  of  a  delusion,  for  this  reason — that  you  must  remember 
that  the  tribunal  that  is  to  determine  the  question  (whether  judge 
or  jury),  must,  of  necessity,  take  his  own  mind  as  the  standard 
whereby  to  measure  the  degree  of  intellect  possessed  by  another 
mau.  You  must  not  arbitrarily  take  your  own  mind  as  the  meas- 
ure, in  tin's  sense,  that  vou  should  sav,  I  do  not  believe  such  and 
such  a  thing,  and  therefore  the  man  who  does  believe  it  is  insane. 
Nay,  more,  you  must  not  say,  I  should  not  have  believed  such  and 
such  a  thing,  therefore  the  man  who  did  believe  it  is  insane.  But 
you  must  of  necessity  put  to  yourself  this  question  and  answer  it: 
Can  I  understand  how  any  man  in  possession  of  his  senses  could 
have  believed  such  and  such  a  thing?  And  if  the  answer  you  give 
is,  I  cannot  understand  it,  then  it  is  of  the  necessity  of  the  case 
thai  you  should  say  the  man  is  not  sane.  Sir  J.  Xicholl,  in  another 
passage,1  give-  what  appears  to  me  to  be  a  more  logical  and  precise 
definition  of  what  a  delusion  is.    [Here  follows  the  statement  given 

ante,  p.   !'*>.]      I    believe  yon  will    find    that   that    test,  applied  will 
solve    most,  if   not    ;ill,  the  difficulties  which    arise  in  investigations 

of  this  kind 

It    is   unfortunately  not    a   thing  unknown  that   parents     and  in 

justice  to  women  I  am  bound  to  say  it  is  more  frequently  the  case 
with  fathers  than  mothers,     thai  they  take  unduly  harsh  views  of 
tin'  characters  of  their  children,  sons  especially.     Thai  is  not  un- 
known.    Ihit  there  is  ;i  limit  beyond  which  one  feel-  that  it  cea 
to  he  a  question  of  harsh,  unreasonable  judgment  of  character,  and 


1  Reported  by  Baggard,  London,  I826,a1  p.  7.  :'.  A<l«l.  Eccl.  7'.). 
B  \<M  .  p.  90 


42  TESTAMENTARY   INCAPACITY. 

that  the  repulsion  which  a  parent  exhibits  towards  one  or  more  of 
his  children  must  proceed  from  some  mental  defect  in  himself.  It 
is  so  contrary  to  the  whole  current  of  human  nature  that  a  man 
should  not  only  form  a  harsh  judgment  of  his  children,  but  that  he 
should  put  that  into  practice  so  as  to  do  them  injury  or  deprive 
them  of  advantages  which  most  men  desire  above  all  things  to  con- 
fer  upon  their  children.  I  say  there  is  a  point  at  which  such  repul- 
sion and  aversion  are  themselves  evidence  of  unsoundness  of  mind. 
Fortunately  the  case  is  rare.  It  is  almost  unexampled  that  a  delu- 
sion consisting  solely  of  aversion  to  children  is  manifested  without 
other  signs  which  may  be  relied  on  to  assist  one  in  forming  an 
opinion  on  that  point.  Perhaps  the  case  which  most  nearly 
approaches  such  an  one  was  Dew  v.  Clark  and  Clark.1  In  that 
case  there  were  indeed  some  minor  matters  which  were  adverted  to 
by  the  judge  in  giving  his  judgment,  but  he  passed  over  them  nat- 
urally lightly.  Fur  instance,  there  was  the  fact  that  the  testator, 
who  had  practiced  medical  electricity,  attached  extraordinary  im- 
portance to  that  means  of  cure  in  medical  practice.  He  conceived 
that  it  might  be  applied  to  every  purpose,  amongst  the  rest  even  to 
the  assisting  of  women  in  childbirth.  But  these  were  passed  over, 
although  not  cast  aside  altogether  by  the  learned  judge,  as  not  enter- 
ing into  the  basis  of  his  judgment.  What  he  did  rely  upon  was  a 
long,  persistent  dislike  of  his  only  child,  an  only  daughter,  who, 
upon  the  testimony  of  everybody  else  who  knew  her,  was  worthy 
of  all  love  and  admiration,  for  whom  indeed  the  father  entertained, 
so  far  as  his  nature  would  allow,  the  warmest  affection  ;  but  it  broke 
out  in  the  most  extraordinary  form  :  he  desired  that  his  child's  mind 
should  be  entirely  subjected  to  his  own,  that  she  should  make  her 
nature  known  to  him,  and  confess  her  faults,  which  of  course  a 
human  being  can  only  do  to  its  Maker ;  and  because  the  child  did 
not  fulfill  his  desires  and  hopes  in  that  respect,  he  treated  her  as  a 
reprobate  and  an  outcast.  In  her  youth  he  treated  her  with  great 
cruelty.  He  beat  her,  he  used  unaccustomed  forms  of  punishment, 
and  he  continued  throughout  his  life  to  treat  her  as  if  she  were  the 
worst,  instead  of  apparently  one  of  the  best  of  women.  In  the  end, 
he  left  her  indeed  a  sum  of  money  sufficient  to  save  her  from  actual 
want,  if  she  had  needed  it ;  but  in  fact,  she  did  not  need  it.     She 


1  Reported  by  Haggard,  London,  1826  ;  3  Add.  Eccl.  79. 


INSANE  DELUSIONS.  43 

was  well  married  to  a  person  perfectly  able  to  support  her,  and  it 
mieht  have  been  argued  that  he  was  content  to  leave  her  to  a  for- 
tune  which  she  had  secured  by  a  happy  marriage.  He  was  not  con- 
tent to  leave  her  so.  He  bequeathed  to  her  a  sum  of  money  which 
would  have  been  sufficient,  in  case  her  husband  had  fallen  into 
poverty,  to  save  her  from  actual  want,  and  the  rest  of  his  property 
he  left,  not  to  strangers  or  charities,  but  to  two  of  his  nephews.  He 
was  a  man  who  throughout  life  had  presented  to  those  who  met 
him  in  the  ordinary  way  of  business  or  the  ordinary  intercourse  of 
life  the  appearance  of  a  rational  man.  He  had  worked  his  way  up 
from  a  low  beginning.  He  had  educated  himself  as  a  medical  man, 
going  to  the  hospitals  and  learning  all  that  could  be  learned  there, 
and  he  amassed  a  large  fortune,  considering  what  he  commenced 
with,  some  £25,000  or  £30,000,  by  the  practice  of  his  profession. 
Yet,  upon  the  ground  I  have  mentioned,  that  the  dislike  he  had 
conceived  for  his  child  had  reached  such  a  point  that  it  could  only 
be  attributed  to  mental  unsoundness,  the  will  so  made  in  favour  of 
the  nephews  was  set  aside,  and  the  law  was  left  to  distribute  his 
property  without  reference  to  his  will.  I  have  said  that  one  usually 
has  other  facts  before  one  beside  the  bare  circumstance  of  a  father 
conceiving  a  dislike  for  a  child,  by  which  to  estimate  whether  such 
dislike  were  rational  or  irrational ;  so  in  this  case  it  has  been  con- 
tended there  are  criteria  from  which  to  judge  of  Mr.  Knights 
treatment  of  his  children  in  his  lifetime,  and  after  his  death  by  his 
will.  Von  arc  entitled,  indeed  are  bound,  to  consider  this  case  not 
in  reference  to  any  particular  act,  not  to  confine  your  attention  to 
one  particular  act  such  as  the  making  of  a  will,  but  you  must  con 
sider  Mr.  Knight's  life  as  a  whole  in  order  to  determine  whether 

in   January,   L869,  when    he  made  the  will,  he  was  of  sound  mind. 

Gentlemen,  I  think  I  can  give  von  some  assistance  in  determining 

the  question  before  yon  by  referring  to  what  has  been  said  on    the 

Bubjecl  in  another  departmenl  of  the  law.  Some  years  ago  the 
question  of  what  amounl  of  mental  capacity  was  required  to  make 
a  man  responsible  for  crime  was  considered  in  McNaughten  s  ( !ase  ' 
Nodoubl  the  question  ie  treated  somewhat  differently  in  a  criminal 
-nit  to  what  it  is  here  (the  difference  I  will  explain  pre  i  utlj  >;  but 
then-  is,  as  yoti  will  easily  Bee,  an  analogy  between  the  cases  which 


1  LOCI.  &  P.  200. 


44  TESTAMENTARY   INCAPACITY. 

will  be  of  use  to  us  in  considering  the  points  before  us.  Lord  Chief- 
Justice  Tindal,  in  expressing  the  opinion  of  all  the  judges,  said : 
"  In  all  cases  every  man  is  to  be  presumed  to  be  sane  until  the  con- 
trary is  proved,  and  it  must  be  clearly  proved,  that  at  the  time  of 
committing  or  executing  the  act  the  party  was  labouring  under  such 
defect  of  reason  from  disease  of  the  mind  as  not  to  know  the  nature 
and  quality  of  the  act  he  was  doing ;  or  if  he  did  know  it,  that  he  did 
not  know  he  was  doing  what  was  wrong."  That,  in  my  opinion, 
affords  as  nearly  as  possible  a  general  formula  which  is  applicable 
in  all  cases  in  which  the  question  arises,  not  exactly,  perhaps,  in  the 
terms  I  have  read,  but  to  the  extent  I  will  explain  to  you.  It  is 
essential,  to  constitute  responsibility  for  crime,  that  a  man  shall 
understand  the  nature  and  quality  of  the  thing  he  is  doing,  or  that 
he  shall  be  able  to  distinguish  in  the  act  he  is  doing  right  from 
wrong.  Now,  a  very  small  degree  of  intelligence  is  sufficient  to 
enable  a  man  to  judge  of  the  quality  and  nature  of  the  act,  and 
whether  he  is  doing  right  or  wrong,  when  he  kills  another  man ; 
accordingly  he  is  responsible  for  the  crime  committed  if  he  possesses 
that  amount  of  intelligence.  And  so  in  reference  to  all  other 
concerns  of  life, — was  the  man  at  the  time  the  act  was  done  of  suffi- 
cient capacity  to  understand  the  nature  of  the  act  ?  Take  the  ques- 
tion of  marriage.  It  is  always  left  in  precisely  the  same  terms  as 
I  have  to  suggest  in  this  case.  If  the  validity  of  a  marriage  be  dis- 
puted on  the  ground  that  one  or  other  of  the  parties  was  of  unsound 
mind,  the  question  will  be,  was  he  or  she  capable  of  understanding 
the  nature  of  the  contract  which  he  or  she  had  entered  into  ?  The 
same  will  occur  in  regard  to  contracts  of  selling  and  buying. 
Again,  take  the  case  suggested  by  counsel,  of  a  man,  who  being 
confined  in  a  lunatic  asylum,  is  called  upon  to  give  evidence. 
First,  the  judge  will  have  to  consider,  was  he  capable  of  under- 
standing the  nature  and  character  of  the  act  that  he  was  called  upon 
to  do,  when  he  was  sworn  to  speak  the  truth  1  "Was  he  capable  of 
understanding  the  nature  of  the  obligation  imposed  upon  him  by 
that  oath  ?  If  so,  then  he  was  of  sufficient  capacity  to  give  evi- 
dence as  a  witness.  But,  gentlemen,  whatever  degree  of  mental 
soundness  is  required  for  any  one  of  these  things, — responsibility 
for  crime,  capacity  to  marry,  capacity  to  contract,  capacity 
to  give  evidence  as  a  witness, — I  must  tell  you,  without  fear 
of  contradiction,  that  the  highest  degree  of  all,  if  degrees  there 


INSANE   DELUSIONS.  45 

be,1  is  required  in  order  to  constitute  capacity  to  make  a  testamentary 
disposition.  And  you  will  easily  see  why.  Because  it  involves  a 
larger  and  wider  survey  of  facts  and  things  than  any  one  of  those  mat- 
ters to  which  I  have  drawn  your  attention.  Now  I  would  call  your 
attention  to  a  case  which  has  been  frequently  adverted  to  during  the 
course  of  this  trial,  the  case  of  Banks  v.  Goodfellow,2  which  was 
decided  in  the  Court  of  Queen's  Bench,  when  I  had  the  honour  of 
being  a  member  of  it.  I  was  a  party  to  the  judgment,  but  the 
language  of  it  was  that  of  the  present  Lord  Chief-Justice.  As  a 
party  to  it,  I  am  bound  by  it  in  the  sense  in  which  I  understand 
its  words.  There  can  be  little  room  for  misconception  as  to  its 
meaning,  but  I  will  explain  to  you  the  scope  and  bearing  of  it.  It 
was  a  case  in  which  a  man  who  had  been  subject  before  and  after 
making  his  will  to  delusions,  was  not  shewn  to  be  under  the  influ- 
ence of  those  delusions  at  the  time,  or,  on  the  other  hand,  to  be  so 
free  from  them,  that  if  he  had  been  asked  questions  about  them, 
he  would  not  have  manifested  that  they  existed  in  his  mind.  But 
he  made  a  will,  by  which  he  left  his  property  to  his  niece,  who  had 
lived  with  him  for  many  years,  and  to  whom  he  had  always  ex- 
pressed  an  intention  to  leave  his  property,  and  to  whom,  in  the 
ordinary  sense  of  the  word,  it  was  his  duty  to  leave  the  property, 
and  of  whom  it  was  right  he  should  take  care  on  his  death.  It  was 
left  to  the  jury  to  say  whether  he  made  that  will  uninfluenced  by 
the  delusions  he  was  bIicwii  to  have  had  before  and  after;  and  the 
jury  found  thai  the  will  which  I  have  described  to  you  was  made 
live  from  the  influence  of  the  delusions  under  which  he  suffered  ; 
and  it  was   held    that,  under  those  circumstances,  the  jury  finding 

the  fact  in  that  way,  such  finding  could  not  be  set  aside.  1  will 
not  trouble  yon  by  reading  the  whole  judgment,  which,  however, 
would  well  repay  the  trouble  of  reading  it,  by  laymen  as  well  as  by 
professional  men,  but    I  will  pick  out   passages  to  shew  von  how 

1  Concerning  this  expression,  Sir  J.  Batmen  has  since  said  (see  note,  l>  R  8 
I'.  &  I),  i,  "  1 1  li:i  been  erroneously  supposed  that  I  said  [in  Boughton  v.  BLnighl  ], 
ilia  i  ii  requin  a  e  ater  degree  of  soundness  of  mi  ml  to  makes  will  than  to  do 
any  other  act.  I  never  said,  and  I  never  meant  tosayso.  What  I  have  said, 
ami  I  repeat  it,  is,  thai  if  you  are  at  liberty  to  draw  distinctions  between  varl 
(hi-  degrees  of  roundness  of  mind,  then,  whatever  Is  the  highest  degree  <>f 
soundness  is  required  i"  make  a  will  "  In  tact,  it  would  appear  after  all 
attempt    t"  lav  down  a  rule,  that  each  ca  e I  □  ii    own  general  merits. 

'  L.  I:.  •".  Q.  B.  549. 


46  TESTAMENTARY   INCAPACITY. 

carefully  guarded  against  misapprehension  the  decision  is.  I 
shall  have  occasion  by-and-by  to  call  your  attention  to  instances  in 
which  I  think  it  has  been  sought  to  apply  it  incorrectly  in  the 
arguments  which  have  been  addressed  to  you.  In  one  passage  the 
Lord  Chief- Justice  says :  "  No  doubt  when  the  fact  that  a  testator 
has  been  subject  to  any  insane  delusion  is  established,  a  will  should 
be  regarded  with  great  distrust,  and  every  presumption  should,  in 
the  first  instance,  be  made  against  it.  Where  insane  delusion  has 
once  been  shewn  to  have  existed,  it  may  be  difficult  to  say  whether 
the  mental  disorder  may  not  possibly  have  extended  beyond  the  par- 
ticular form  or  instance  in  which  it  has  manifested  itself.  It  may 
be  equally  difficult  to  say  how  far  the  delusion  may  not  have  influ- 
enced the  testator  in  the  particular  disposal  of  his-  property.  And 
the  presumption  against  a  will  made  under  such  circumstances  be- 
comes additionally  strong,  where  the  will  is,  to  use  the  term  of  the 
civilians,  an  inofficious  one ;  that  is  to  say,  one  in  which  natural 
affection  and  the  claims  of  near  relationship  have  been  disregarded." 
In  an  earlier  passage  the  Lord  Chief-Justice  lays  down  with,  I  think 
I  may  say,  singular  accuracy,  what  is  essential  to  the  constitution 
of  testamentary  capacity  :  "  It  is  essential  to  the  exercise  of  such  a 
power  (of  making  a  will)  that  a  testator  shall  understand  the  nature 
of  the  act,  and  its  effects ;  shall  understand  the  extent  of  the  prop- 
arty  of  which  he  is  disposing ;  shall  be  able  to  comprehend  and 
appreciate  the  claims  to  which  he  ought  to  give  effect,  and  with  a 
view  to  the  latter  object  that  no  disorder  of  the  mind  shall  poison 
the  affections,  pervert  his  sense  of  right,  or  prevent  the  exercise  of 
his  natural  faculties,  that  no  insane  delusion  shall  influence  his  will 
in  disposing  of  his  property,  and  bring  about  a  disposal  of  it  which, 
if  the  mind  had  been  sound,  would  not  have  been  made.  Here, 
then,  we  have  the  measure  of  the  degree  of  mental  power  which 
should  be  insisted  on.  If  the  human  instincts  and  affections,  or  the 
moral  sense,  become  perverted  by  mental  disease,  if  insane  suspi- 
cion or  aversion  take  the  place  of  natural  affection,  if  reason  and 
judgment  are  lost,  and  the  mind  becomes  a  prey  to  insane  delusions 
calculated  to  interfere  with  and  disturb  its  functions,  and  to  lead 
to  a  testamentary  disposition,  due  only  to  their  baneful  influence, 
in  such  a  case  it  is  obvious  that  the  condition  of  testamentary  power 
fails,  and  that  a  will  made  under  such  circumstances  ought  not  to 
stand."     Gentlemen,  I  have  no  fear,  when  rightly  understood,  of 


INSANE  DELUSIONS.  -47 

that  case  being  misapplied Now,  gentlemen,  these  being  the 

epochs  of  his  life,  let  us  direct  our  attention  to  the  manifestations 
of  character  and  condition  of  mind  in  him.  I  have  already  said,  in 
my  opening  observations,  that  a  very  large  allowance  must  be  made 
for  eccentricities.  I  do  not  say  that  they  never  in  themselves  can 
amount  to  evidence  upon  which  a  jury  would  be  justified  in  com- 
ing to  the  conclusion  that  a  man  is  of  unsound  mind,  when  coupled 
with  what  I  will  call,  for  convenience  sake,  an  unnatural  will,  but, 
certainly,  eccentricities  must  not  be  allowed  to  weigh  heavily  in  the 
scale  against  the  argument  that  a  man  is  of  sound  mind.  Really 
the  forms  and  usages  of  society  surround  us  like  an  atmosphere, 
and  compress  us  all  into  a  somewhat  monotonous  uniformity  of 
mould,  and  if  a  man  is  relieved  from  this  pressure,  his  individu- 
alitv  will  expand  into  strange  and  sometimes  fantastic  shapes,  but 
it  must  not  be  assumed  he  is  on  that  account  insane.  Many  of  the 
acts  of  the  deceased  of  this  kind,  which  have  been  enumerated  by 
counsel,  cannot,  I  think,  in  themselves  establish,  and  are  very  far 
from  establishing,  unsoundness  of  mind.  They  may  suggest  the 
idea,  they  may  help  to  confirm  the  idea  derived  from  other  sources, 
that  there  was  unsoundness  in  his  mind  ;  they  may,  so  to  speak,  fill 
up  the  crevices  of  the  argument,  but  they  do  not  themselves  con- 
stitute sound  material  mi  which  a  conclusion  can  be  built  as  to  the 
deceased's  capacity.  (His  Lordship  fully  reviewed  all  the  evidence 
which  had  been  produced  at  the  trial,  and  concluded:) 

It  i>  for  von  to  say  whether  the  accumulation  of  this  evidence 
(for  the  defendants)  has  not  this  effect  on  your  minds  that  it  leads 
x . > 1 1  to  the  conclusion  that,  whatever  fluctuation  there  may  have 
been  in  the  condition  of  Mr.  Knight's  mind, for  some  years  before 

he  made  this  will  he  had  been  subject  to  delusions,  especially  in 
reference  to  the  character,  the  intention,  and  the  motives  of  his 
Son's  acts:  and  if  you  so  find,  then  I  must  impress  upon  you  that 
it  become-  the  duty  of  the  iilaiutilfs  to  satisfy  you  that  at  the 
tmie  the  testator  made  the  will  he  wasd'ree  from  t  hose  delusions, 
or  free  from  their  influence.  The  burthen  of  proof,  as  it  is  called, 
is  upon  those  who  assert  that  the  testator  was  of  a  sound  and  dis- 
posing mind.'  In  considering  the  question  you  cannot  put  yside 
the   contents   of,  and   surrounding   circumstances  connected    with, 

1  Bee  Index,  "  Burden  of  Proof." 


48  TESTAMENTARY   INCAPACITY. 

the  will.  Again,  on  considering  whether  or  not  the  testator  was 
free  from  delusions  as  to  the  characters  of  his  several  sons,  when 
he  passed  them  over  in  the  disposition  of  his  real  estate,  leaving 
them  only  limited  sums  of  money  out  of  his  personalty,  you  must 
not  disregard  the  fact  that  he  selected  in  their  place  one  who  had 
no  natural  claims  upon  him,  of  whom  he  knew  little,  and  to  whom 
he  was  under  no  such  obligations  as  are  usually  recognized  as  the 
foundation  of  such  gifts.  You  must  take  that  into  your  consider- 
ation in  determining  whether  at  the  time  the  deceased  made  his 
will  those  prevailing  delusions  to  which  I  have  referred  had  passed 
away,  or  were  utterly  inoperative.  Gentlemen,  I  have  detained 
you  at  some  length.  I  felt  the  importance  of  the  case  was  such  as 
to  justify  it,  and  I  now  leave  you  to  discharge  that  responsible 
duty  of  which  I  reminded  you  at  the  outset  of  the  observations  I 
have  addressed  to  you. 

The  jury  found,  that  on  the  27th  of  January,  1869,  the  date  of 
the  will  propounded  by  the  plaintiffs,  the  deceased,  John  Knight, 
was  not  of  sound  mind,  memory,  and  understanding.  (Here  fol- 
lows a  further  opinion  on  the  matter  of  costs.) 

Will  pronounced  against. 

INSANE  HATRED   FOR  A  SON. 

Merrill   v.  Rolston. 

Surrogate's  Court,  New  York  County,  New  York,  1881. 

(5  Redf.  220.) 

Application  for  the  probate  of  instruments  purporting  to  be  the 
last  will,  and  codicil  thereto,  of  Caroline  A.  Merrill,  and  bearing 
date  respectively  on  May  2,  1871,  and  December  9,  1875. 

George  Merrill,  a  nephew  and  adopted  son,  and  others,  contested 
on  the  ground  of  mental  incapacity  and  undue  influence.  The 
court  found  that,  in  view  of  all  the  testimony,  "there  was  no 
doubt  as  to  her  entire  soundness  of  mind,  except  as  to  her  sojcalled 
delusion  respecting  George  Merrill  and  his  wife";  and  also  that 
there  was  no  reasonable  ground  for  finding  that  testatrix  had  been 
unduly  influenced. 

George  Merrill  had  been  informally  adopted  by  testatrix  and 
her  husband,  about  1838  (lie  being  a  nephew  of  decedent).     The 


INSANE  HATRED   FOR  A   SON.  49 

father  died  in  1867,  leaving  a  will  executed  in  1856,  giving  George 
$30,000,  and  all  in  case  of  decedent  dying  before  her  husband. 
Decedent  also  made  a  will  in  November,  1856,  giving  all  her  prop- 
erty to  her  husband,  but  in  case  of  his  death  before  her,  to  George. 
She  wrote  him  from  time  to  time,  in  most  affectionate  terms,  ad- 
dressing him  as  "  My  dear  George,"  and  signing  herself,  "  Yom 
affectionate  mother." 

Subsequently,  and  without  any  cause  shown,  decedent  under- 
went a  complete  revulsion  of  feeling  toward  George,  said  she  had 
closely  watched  him,  and  was  completely  convinced  that  he  was 
"entirely  without  principle,  truth,  natural  affection,  faith  in  re- 
ligion— in  fact,  every  element  that  made  a  human  being  above  a 
'brute?  She  also  made  scurrilous,  obscene,  and  utterly  false 
charges  against  George's  wife.  She  also  wrote  him  as  follows: 
"  I  heartily  say,  may  you  become  as  deaf  as  your  sister  is ;  may 
you  become  so  blind  that  you  cannot  distinguish  night  from  day  ; 
may  you  have  every  trial,  every  disease,  every  affliction  that  was 
ever  sent  upon  man ;  may  I  live  to  see  you  hung — hung  up  by 
your  lying  tongue,  is  my  unceasing  wish.  In  conclusion,  I  give 
you  the  curses  of  her  you  have  called  mother  for  twenty-seven 
years,"  etc. 

She  had  a  portrait  of  George,  which  she  mutilated  by  cutting 
out  the  mouth  and  thumb,  and  she  stated  as  a  reason  for  the  act 
that  hr  had.  ,i  lying  tongue  and  a  false  pen,  and  should  never  be 
allovwd  to  speak  or  write  again.  Many  other  things  are  set  forth 
in  tin-  reported  case,  of  a  similar  character,  none  of  them  having 
any  basis  of  fact  whatever. 

Calvin,  8.  (after  a  full  review  of  the  testimony,  and  after  ex 
amining  and  disposing  of  other  points) : 

Taken    in    conjunction    with    the    foregoing    facts   and    circiim 
stance-,  her   vulgar  and    false   charge,  without    the   re test    foun- 
dation, of  illicit   intercourse  between  George  and  liis  intended  wife  ; 

the  general  imputation  oi  unchastity,  equally  baseless;  her  diabol- 
ical and  fiendish  imprecations  upon  George,  just  referred  to;  her 

incoherent  and  impious  curses ;  her  senseless  mutilation  of  her  will 
and  hi-  portrait,  and  the  reasons  given  for  it,  all  combine  to  show- 
that,  if  decedenl  was  of  sound  mind,  an  Intelligent,  affectionate, 
kind,  modest,  truthful.  Christian  woman  had  Keen  transformed 
into  a  bold,  defiant,  passionate,  unfeeling,  cruel,  false,  vulgar,  and 
l 


50  TESTAMENTARY   INCAPACITY. 

obscene  fiend  incarnate,  which  cannot  be  pleaded  even  as  a  thought- 
less ebullition  of  intemperate,  ungovernable  anger  and  jealousy,  for 
the  utterances  were  oft  repeated  and  rewritten  with  deliberation  at 
distances  from  the  object  of  her  malediction,  with  nothing  appar- 
ently but  a  distorted  brain  to  account  for  her  transformation  so 
complete  and  the  delusions  so  marked,  which  would  be  a  signal 
mercy  to  her  memory  and  the  fame  of  her  sex  to  ascribe  it  to  a 
morbid  or  insane  delusion. 

It  is  the  essence  of  an  insane  delusion  that,  as  it  has  no  basis  in 
reason,  so  it  cannot  by  reason  be  dispersed,  and  is  thus  capable  of 
being  cherished  side  by  side  with  other  ideas  with  which  it  is 
rationally  inconsistent.     (Smith  v.  Tebbitt,  L.  R.  1  P.  &  D.  398.) 

An  insane  delusion  is  not  only  one  which  is  founded  in  error, 
but  one  in  favor  of  the  truth  of  which  there  is  no  evidence,  but 
the  clearest  evidence  often  to  the  contrary.  It  must  be  a  delusion 
of  such  a  character  that  no  evidence  or  argument  will  have  the 
slightest  effect  to  remove.  (1  Redf.  Law  of  Wills,  86 ;  Florey  v. 
Florey,  24  Ala.  241.) 

(The  Surrogate  here  quotes  with  approval  from  Stanton  v. 
Weatherwax,  16  Barb.  259,  the  definition '  given  by  Sir  John 
Nicoll,  there  quoted  and  approved ;  cites  1  Bouv.  Diet.,  "  Delu- 
sion," and  cases  cited ;  and  discusses  Clapp  v.  Fullerton,  34  N.  Y. 
190 ;  1  Redf.  on  Wills,  86,  note  22 ;  and  Seamen's  Friend  Society 
v.  Hopper,  33  N".  Y.  619.     He  then  proceeds  as  follows :) 

The  whole  character,  deportment,  and  conduct  of  George  Mer- 
rill has  been  conclusively  proved  to  have*  been  a  complete  refuta- 
tion of  decedent's  accusations,  which  accusations,  however,  appear 
to  have  been  confidently  believed  by  her,  for  it  would  be  an  unjust 
and  unwarranted  accusation  that  she  knew  them  to  be  untrue, 
and  yet  persisted  in  charging  and  acting  upon  their  truth. 

Her  belief  that  the  Green  &  Co.  matter  [a  subject  referred  to 
in  the  testimony,]  had  killed  her  husband,  and  that  he  said 
so  repeatedly,  is  against  reason  and  contradicted  by  all  the  prob- 
abilities of  the  case,  and  the  whole  character  of  her  husband 
afforded  the  most  persuasive  evidence  against  the  assertion. 
The  education,  manners,  culture,  habits,  talents,  morals,  gener- 
ous, honorable,  and  manly  instincts   of   George   Merrill   contra- 

1  In  Dew  v.  Clark,  3  Add.  90,  see  ante,  Boughton  v.  Knight. 


INSANE  HATRED   FOR   A   SON.  51 

dieted  all  her  slanderous  and  libellous  charges  against  him,  and  the 
verbal  and  written  opinions  of  her  husband,  and  of  herself,  furnish 
the  most  indubitable  refutation  of  her  allegations  that  neither  his 
adopted  father  or  she  ever  felt  any  interest,  confidence,  or  affec- 
tion for  him  ;  and  in  her  case,  her  unvarying  statements  in  her 
correspondence  of  about  eight  years  after  George  had  graduated, 
afford  positive  proof  that  she  often  stated  and  wrote  most  ob- 
vious falsehoods  respecting  him,  and  of  her  opinion  of  and  senti- 
ments toward  him,  so  that  she  believed  the  untruths,  not  ord/y 
without  t  vidence,  hut  ayauist  the  coyent  arguments  which  the  facts 
afford*  >/. 

Another  feature  which  it  seems  to  me  should  have  some  weight 
in  this  inquiry,  is  that  the  prejudices,  jealousy,  vindictiveness,  and 
vulgarity  of  the  decedent  did  not  exhibit  themselves  as  connected 
with  any  other  matter  than  her  relations  to  George,  his  wife,  and 
the  Green  &  Co.  matter,  and  it  seems  perfectly  obvious  that  the 
decedent  was  possessed  of  a  morbid  mind  upon  those  subjects,  from 
which  there  is  no  evidence  that  she  ever  recovered ;  but  on  the 
contrary,  whenever  her  mind  rested  upon  these  subjects,  a  morbid 
delusion  exhibited  itself;  and  I  am  of  the  opinion  that  she  enter- 
tained them  until  the  execution  of  her  will  and  codicil  propounded, 
and  they  constituted  the  motive  and  occasion  of  her  change  of  the 
terms  of  her  will  of  1856,  and  the  disinherison  of  George. 

This  brings  me  to  the  inquiry  whether  the  insane  delusions  in 
respect  to  George  were  such  as  to  avoid  the  will  and  codicil.  Red- 
field,  in  his  first  volume,  at  page  79,  states  the  rule  thus:  "  When- 
ever it  appears  that  the  will  is  the  direct  offspring  of  partial  in- 
sanity, or  monomania,  under  which  the  testator  was  laboring,  it 
should  be  regarded  as  invalid,  though  his  general  capacity  be  un- 
impeached."    (I.oyd   v.   Eby,  s  Watts  71  ;  Tawney  v.  Long,  76 

l'ellll.    lOt;  ;    |)e\v  v.  Clark,    1    Add.   279,  3    Id.    79.) 

Wittard  on  Executors, at  page  8,  says,  of  the  latter  ease,  it  must 

be  considered  as  establishing  the  doctrine   that  partial  insanity  will 

invalidate  a  will  which  is  fairly  inferred  to  be  the  direct  offspring 
of  that  insanity. 

In   Water-  v.  ('ullen  (2  Bradf.    354),  the    will    was    set    aside   on 

the  ground  of  insanity,  the  testatrix  having  died  of  delirium 
tremensj  to  which  die  had  beet  subject  more  or  less,  for  some  time 
before  her  death ;  Bhe  gave  her  property  to  the  children  of  her 


52  TESTAMENTARY   INCAPACITY. 

first  husband,  and  left  those  by  the  last  penniless,  stating  as  the 
reason,  that  the  property  came  from  her  first  husband  ;  it  also 
appeared  that  she  believed  that  she  had  been  poisoned  by  the  father 
of  the  children  whom  she  left  unprovided  for,  and  it  was  held  that 
she  labored  under  an  insane  delusion  in  both  respects.  In  Stanton 
v.  Wetherwax,  above  cited,  the  same  doctrine  is  maintained.  See 
also  Seamen's  Friend  Society  v.  Hopper,  above  cited. 

In  Lathrop  v.  American  Board  of  Foreign  Missions  (67  Barb. 
590),  the  decree  of  the  Surrogate,  refusing  probate  of  the  instru- 
ment propounded  on  the  ground  that  it  was  executed  under  the 
delusion  that  his  relatives  and  acquaintances  had  entered  into  a 
conspiracy  to  rob  him  of  his  property,  he  being  a  confirmed  mono- 
maniac upon  the  subject  of  Freemasons,  and  charging  that  his 
relatives  were  Freemasons,  was  affirmed.  » 

In  Lathrop  v.  Borden  (5  Hun  560),  the  same  doctrine  is  main- 
tained ;  also  in  Clapp  v.  Fullerton,  above  cited  (see  also  Brick  v. 
Brick,  66  N.  Y.  144 ;  Coit  v.  Fatchen,  77  Id.  533 ;  Denson  v. 
Beazley,  34  Texas  191). 

In  Gardner  v.  Lamback  (47  Ga.  133),  the  charge  to  the  jury, 
that  if  the  testator  was  partially  insane,  and  the  will  was  in  any 
way  the  effect  or  result  of  that  insanity,  it  was  void,  was  sustained. 

In  Potts  v.  House  (6  Ga.  324),  it  was  held  that  if  the  testator 
was  partially  deranged,  either  as  to  the  legatees  or  subject  matter 
of  his  will,  he  was  mentally  unsound  in  respect  to  the  particular 
will,  however  unimpeachable  his  capacity  in  other  respects.  (See 
Lucas  v.  Parsons,  24  Id.  640 ;  Brooke  v.  Townshend,  7  Gill.  10 ; 
Robinson  v.  Adams,  62  Maine  369 ;  Benoist  v.  Murrin,  58  Mo. 
307 ;  Stackhouse  v.  Horton,  15  K  J.  Eq.  202.) 

If  the  argument  of  the  learned  counsel  for  the  residuary  legatee 
in  this  proceeding  was  rightly  apprehended  upon  this  branch  of 
the  case,  it  was  that  George  Merrill  had  no  claims  upon  the  testa- 
trix's bounty,  and  therefore  any  insane  delusion  as  to  him  would 
not  invalidate  the  instrument  propounded. 

Upon  the  most  careful  consideration  which  I  have  been  able  to 
give  the  elementary  treatises  and  decisions  upon  the  subject,  I  am 
not  able  to  find  any  such  distinction  enforced  or  recognized.  The 
fact  that  George  was  next  of  kin  of  decedent,  who  would  have 
taken  a  share  of  her  property  in  case  of  intestacy,  and  had  been 
informally  adopted  by  decedent's  husband  and  recognized  by  him 


INSANE  HATRED   FOR   A   SON.  53 

and  the  decedent  as  a  son;  with  the  declared  intention  that  he 
should  succeed  to  their  property,  and  the  execution  of  decedent's 
will  of  1856,  by  which  George  became  the  sole  beneficiary,  seem 
to  me  to  establish  a  claim  upon  the  bounty  of  decedent  which  can- 
not be  denied,  for  as  next  of  kin,  in  the  absence  of  a  will,  he  had 
a  claim  upon  her  bounty,  and  that  claim  certainly  was  not  weak- 
ened by  adoption  and  treatment  as  a  son,  and  it  is  too  clear  for 
argument  that  if  the  instruments  propounded  are  void  for  want  of 
mental  capacity  on  the  part  of  the  decedent  to  execute  them,  then 
at  her  death,  notwithstanding  the  execution  of  them,  George 
became  the  vested  owner  of  all  her  property. 

Slippo.se  that  the  decedent,  after  the  execution  of  her  will  of 
1856,  had  been  informed  by  one  of  her  other  relatives  that  George 
had  died,  and  in  the  honest  belief  of  that  fact,  she  made  a  new 
will,  giving  all  her  property  to  that  relative  who  had  thus  deceived 
her,  would  there  be  any  doubt  that  George,  by  virtue  of  the  former 
will,  had  such  claims  upon  the  decedent  as  to  entitle  him  to  contest 
the  later  will,  and  to  allege  that  it  was  made  under  fraudulent. 
representations,  and  therefore  void,  and  that  fact  being  established, 
is  it  not  manifest  that  it  would  revive  the  former  will,  and  thus 
vest  in  the  contestant  all  his  rights? 

Indeed,  I  am  inclined  to  the  opinion  that  if  George  had  been  an 
entire  stranger  to  the  decedent,  and  under  an  insane  delusion  she 
had  changed  her  will,  which  had  given  him  her  property,  to  his 
disinherison,  that  insane  delusion  would  avoid  the  latter  instrument 
and  revive  the  former. 

I  am  not  able  to  understand  why  a  will  made  by  an  insane  person 
should  l»c  invalidated,  when  it  deprives  a  near  relative  of  an 
expected  bounty,  and  validated,  \\  lien  it  deprives  a  remote  relative 
of  a  like  bounty,  lot-  it  is  the  insanity  which  avoids  the  act.  and  if 
the  will  clearly  appears  to  have  been  executed  under  an  insane 
delusion,  it  would  be  equally  void  as  if  executed  by  one  who  was 
b  confirmed  lunatic  or  utterly  demented,  and  George,  if  a  stranger, 

COuld  COntesI  the  will  thus  made,  because  Of  his  rights  under  the 
former  will. 

Sec  Walsh  v.  Ryan  M  Brad,  i-33),  where  it  was  held  thai  it  was 

competent    for  a    legatee    under   a    will    to   oppose    the    proof  of  a 

codicil,  which  purported  to  revoke  his  legacy  given  l>v  the  will. 
In  Gombaull  v.  Public  Administrator  (4  Brad.  ii li « "> t ,  it  was  held 


54  TESTAMENTARY   INCAPACITY. 

that  the  public  administrator  might  intervene  to  contest  the  probate 
of  a  will  as  to  the  personal  estate,  and  the  attorney-general  as  to 
the  realty. 

I  can  conceive  no  logic  which  would  validate  a  will  executed  as 
the  offspring  of  an  insane  delusion,  and  the  only  significance  that 
the  relationship  of  the  parties  contesting,  as  the  subject  of  the 
insane  delusion,  can  have,  is  in  determining  whether  the  will  was 
the  offspring  of  the  particular  delusion  alleged. 

I  am  fully  aware  of  the  fact  that  the  setting  aside  or  rejection  of 
a  will  is  the  exercise  of  a  very  radical  judicial  prerogative,  and  that 
it  should  not  be  exercised  except  upon  very  satisfactory  proofs. 
But  if  I  am  right  in  holding  that  decedent  made  the  will  and 
codicil  offered  for  probate,  under  a  delusion  as  to  the  character  and 
conduct  of  George  Merrill,  and  that  delusion  was  such  as  the  law 
adjudges  insane,  the  will  and  codicil  must  he  refused  probate :  This 
latter  conclusion  renders  it  unnecessary  to  consider  the  point  raised 
as  to  the  provisions  in  behalf  of  Cardinal  McCloskey,  being  in  fact 
in  trust  for  the  benefit  of  "  religious  or  missionary  societies  or 
corporations." 

The  instruments  propounded  should  be  refused  probate  because 
they  were  executed  by  the  decedent  when  laboring  under  an  insane 
delusion,  the  same  being  the  direct  offspring  of  such  delusion. 

Let  a  decree  be  entered  accordingly. 

[A  person  entertaining  even  violent  dislike  to  another  may  be 
actuated  in  so  doing  from  a  fancied  and  unreal  cause.  He  may  in 
this  respect  be  said  to  be  laboring  under  a  delusion.  Yet  it  would 
not  necessarily  be  such  a  delusion  as  would  justify  his  being  pro- 
nounced insane.  Mere  antipathy  to  those  most  nearly  related  to 
testator,  without  just  and  sufficient  cause,  will  not  in  itself  invalidate 
a  will.  The  delusion  which  will  invalidate  a  will  must  point  to 
actual  unsoundness  of  mind.     In  other  words,  it  must  be  an  insane 

delusion.1] 

LUCID  INTERVALS. 

Nichols  and  Freeman  v.  Binns. 

English  Court  op  Probate,  1858. 
(1  Sw.  &  Tr.  239.) 
This  was  a  cause  of  proving  in  solemn  form  the  last  will  and 
testament  of  Mr.  "William  Wiggett  Parkinson,  who  died  on  the 

1  Brown  v.  Ward,  53  Md.  376  (392) ;  Clapp  v.  Fullerton,  34  N.  Y.  190. 


LUCID   INTERVALS.  55 

27th  of  August,  1857,  in  the  Heightam  Hall  Lunatic  Asylum,  "Nor- 
wich, promoted  by  Nichols  and  Freeman,  the  executors  named 
therein.  The  will  in  question  was  dated  the  15th  day  of  Novem- 
ber, 1851,  and  was  signed  by  the  deceased  during  his  confinement 
in  the  above-named  asylum,  and  attested  by  three  witnesses.  Pro- 
bate of  the  will  was  opposed  by  the  defendants,  H.  B.  Binns  and 
Mary  Ann,  his  wife,  who  was  the  niece  and  sole  next  of  kin  of 
the  deceased,  on  the  ground  that  at  the  time  of  its  execution  he 
was  of  unsound  mind. 

Sir  C.  Cresswkll  (to  the  jury) :  The  question  for  your  decision 
is,  whether  Mr.  Parkinson,  the  deceased  in  this  case,  who  is  proved 
to  have  been  insane  at  times  and  for  long  periods  of  time  during 
many  years,  was  in  the  enjoyment  of  a  lucid  interval  when  he  ex- 
ecuted this  will. 

Where  a  person  is  never  shown  to  have  been  insane,  the  law 
presumes  that  he  is  sane;  but  if  insanity  is  once  proved  to  have 
been  during  a  period  of  his  life  his  normal  state,  it  is  necessary,  in 
order  to  establish  the  validity  of  any  act  which  he  may  have  done 
during  that  period,  to  show  that  he  was  sane  at  the  time  of  his 
doing  that  act. 

I  have  referred  to  the  case  of  Cartwright  v.  Cartwright,1  which 
is  a  decision  by  Sir  William  Wynne  in  the  Prerogative  Court,  and 
Is  one  which  has  been  frequently  quoted.  The  testator  in  that 
case  was  a  lady  afflicted  with  permanent  insanity,  and  living  under 
restraint,  but  who  was  proved  to  have  had  intermissions  of  her 
complaint;  she  drew  up.  without  assistance,  and  in  proper  form,  a 
will  in  her  own  handwriting;  she  was  apparently,  almost  at  the 
moment  of  preparing  it,  in  considerable  excitement  ;  for  she  was 
Been  at  the  time  to  write  upon  several  pieces  of  paper  and  tear 
them  up  in  a  wild   and   excited   manner  and   throw  them    into  the 

fire;  but  the  will   in  question  appeared  certainly  to  have  been  a 

right  and  natural  will  for  her  to  have  made,  and  was  held  to  be  a 
good  will.      Sir  William  Wynne,  in    his  judgment    in   thai  case,  is 

reported  to  have  said  :  "  II  it  can  be  proved  thai  this  Is  a  rational 
act  rationally  done,  the  whole  case  is  proved.  What  can  yon  do 
more  to  establish  the  act?"  Bui  this  expression  of  the  learned 
Judge  cannot  be  applied  strictly  to  all  cases.    The  mere  fad  thai 

1  1  Phill.  90. 


56  TESTAMENTARY   INCAPACITY. 

the  act  is  rational,  and  done  in  a  rational  manner,  is  not,  I  think, 
in  itself  conclusive  evidence  of  sanity ;  although  in  every  case  it 
will  be  very  strong  evidence  of  sanity,  tending  greatly  to  satisfy 
the  mind  of  a  rational  person  that  the  party  so  doing  that  act  was 
at  the  time  in  full  possession  of  his  senses.  But  after  a  paroxysm 
of  insanity  has  passed  away,  insanity  may  still  be  lurking  in  the 
mind  of  the  patient,  although  there  is  nothing  apparent  on  the 
surface  to  show  it. 

It  was  argued  by  counsel  in  opposition  to  this  will,  that  although 
when  the  deceased  made  it,  apparently  he  was  restored  to  sanity, 
yet  there  might  have  still  been  insanity  lurking  within,  which  was 
not  observable ;  and  he  told  you  of  two  or  three  remarkable  in- 
stances, the  traditions  of  the  bar  in  Westminster  Hall,  in  '  one  of 
which  a  great  and  experienced  advocate  cross-examined  a  witness  a 
long  time  before  he  could  discover  that  he  was  insane.  He  did  not 
do  so  until  he  touched  upon  the  subject  upon  which  he  laboured 
under  a  delusion.  But  in  all  those  cases  you  will,  I  believe,  find 
that  the  person  was  labouring  under  an  insane  delusion  ;  and  where 
this  is  the  case,  unless  you  discover  what  the  delusion  is,  and  bring 
the  subject  of  his  delusion  under  his  attention,  you  may  not  dis- 
cover that  he  is  insane.  This  will  not  apply  to  the  present  case, 
for  there  is  no  proof  that  the  deceased  was  ever  subject  to  any  de- 
lusion. Indeed,  it  appears  according  to  the  evidence  of  one  gentle- 
man, Mr.  Nichols,  who  gave  his  evidence,  I  thought,  very  sensibly, 
that  the  deceased's  was  a  case  of  recurrent  mania,  and  that  his  ex- 
istence was  passed  under  three  different  sets  of  circumstances — 
raving  madness ;  depression,  amounting  to  an  insane  state  of  mind  ; 
sanity.  And  Mr.  "Watson  said,  that  as  his  bodily  health  became 
stronger,  there  was  again  an  increased  and  inflammatory  action  of 
the  brain,  and  again  he  became  violent ;  then  came  another  fit  of 
depression,  and  then  sanity,  and  so  on  in  a  regular  course.  But  in 
no  part  of  their  evidence  do  they  ever  say  there  was  anything  like 
a  delusion  by  which  at  any  period  they  could  test  whether  he  was 
sane  or  not.  It  was  therefore  only  by  his  answers  to  questions,  his 
apparent  recollection  of  past  transactions,  and  his  reasoning  justly 
with  regard  to  them,  and  with  regard  to  the  conduct  of  individuals, 
that  any  one  could  judge  whether  he  was  sane  or  not. 

1  Mr.  Greenwood's  case. 


LUCID   INTERVALS.  57 

It  appears  that  the  deceased  (and  there  is  no  doubt  about  this) 
had  two  nieces,  one  (Mrs.  Freeman)  who  had  always  pleased,  and 
the  other  (Mrs.  Binns)  who  had  disobliged  him.  Mrs.  Freeman 
had  three  children,  and  Mrs.  Binns  had  one.  He  had  made  a  will 
in  1S39,  the  arrangements  of  which  were  entirely  defeated  by  the 
death  of  Mrs.  Freeman  and  her  brother;  so  that  if  no  new  will 
were  made,  nearly  the  whole  of  his  property  would  have  gone  to 
the  niece  who  had  disobliged  him,  to  the  exclusion  of  those  with 
whom  he  had  always  been  satisfied,  and  upon  whom  he  had  be- 
stowed a  sjreat  share  of  his  affection.  It  is  also  admitted  that 
when  he  was  removed  from  the  first  lunatic  asylum  in  which  he 
\\as  placed,  I  mean  Mr.  Dalrymple's  asylum,  the  house  he  went  to 
was  Mr.  Freeman's.  He  went  there  and  remained  there  for  nearly 
four  years  (in  the  course  of  which  he  had  occasional  fits  of  in- 
sanity), and  during  that  time  there  does  not  appear  to  have  been 
any  trace  of  friendly  or  kindly  intercourse  between  him  and  Mr. 
and  Mrs.  Binns. 

There  is  no  doubt  that  the  execution  of  this  will  was  a  very  re- 
sponsible transaction  ;  and  that  a  will  prepared  and  executed  in  a 
lunatic  asylum  by  a  man  not  generally  in  possession  of  his  facul- 
ties, ought  to  be  regarded  with  great  care  and  jealousy;  but  this 
should  not  be  carried  too  far;  for  a  person  may  be  in  a  lunatic 
asylum  because  he  is  afflicted  by  a  malady  which  makes  it  neces- 
sary that  he  should  be  placed  under  restraint,  but  who  at  times 
may  he  perfectly  sane  ;  and  if  he  was  prevented  from  disposing  of 
bis  property  according  to  his  wishes  it  would  be  a  great  hardship 
upon  him.  I  can  fancy  a  case  where  such  a  person  being  con- 
scious that  he  was  labouring  under  a  restraint,  and  feeling  that  his 
property,  if  he  did  not  make  a  disposition  of  it,  would  not  go  as 
he    thought    righl    and    just,  would   be  inueh  alTecfcd   if  bethought 

thai  hi'  could  not  otherwise  dispose  of  it.     We  have  some  trace  of 

this  kind  of  feeling  in  the  present  ease.      Mr.  Watson  says:   "The 

deceased   frequently  mentioned   to  him  his  family  ;  ami  said  he 

wished  to  make,  if  possible,  a  fresh  and  more  even    adjustment    ol 

his  property, and  thai  he  mentioned  the  death  of  Mr.  Joseph  Park- 
inson, and  al-o  of  bis  1 1  i«  '••  •,  Mrs.   I'Yeeman,  and  said  that    in   COnse 

quence  of  their  death  the  whole  would  go  to  Mrs.  Binns,  which 

was  n..t  hi-  wish  or  intention."      Then,  again,  there  is  a  remarkable 

circumstance  spoken   to  by   Mr.   Nichols,  that  this  annoyed  him 


58  TESTAMENTARY   INCAPACITY. 

very  much,  and  distressed  and  disturbed  him,  and  that  he  was  very 
anxious  about  it;  that  he  knew  his  position, —that  he  was  in  a 
lunatic  asylum, — and  felt  that  there  Was  a  difficulty  about  making 
his  will,  and  had  asked  him  if  it  could  not  be  done. 

It  is  said  that  there  is  some  little  difference  between  the  instruc- 
tions and  the  will.  But  the  will  is  substantially  in  accordance  with 
the  instructions ;  it  was  read  over  and  explained  to  the  testator, 
and  he  was  perfectly  satisfied  with  it. 

In  addition  to  this,  you  have  the  evidence  of  Mr.  Nichols,  Mr. 
AVatson,  Dr.  Rankin,  and  Mr.  Mills,  whose  characters  are  high  in 
the  profession  to  which  they  belong.  Two  of  these  gentlemen, 
Mr.  Nichols  and  Mr.  Watson,  tell  you  that  in  the  month  of  August, 
1851,  they  saw  the  testator  in  the  lunatic  asylum,  and  that  they  had 
no  doubt  of  his  sanity  at  that  time  ;  and  the  other  two  gentlemen 
were  called  in  for  the  purpose  of  ascertaining  the  state  of  his  mind 
in  November,  and  although  they  do  not  recollect  the  questions 
they  put  to  him, — Dr.  Rankin  says  that  he  was  with  him  for  about 
three-quarters  of  an  hour,  and  that  he  endeavored  to  test  his  under- 
standing,— and  they  both  say  that  they  were  perfectly  satisfied  of 
his  competency  at  that  time. 

At  the  conclusion  of  the  learned  Judge's  charge,  the  jury  having 
retired  for  a  few  minutes,  found  by  their  verdict  that  the  will  was 
made  by  the  deceased  in  a  lucid  interval. 

INSANITY.— LUCID  INTERVAL. 
Matter  of  Will  of  Sarah  J.  Macpherson. 

Surrogate's  Court,  New  York  County,  New  York,  1889. 

(20  N.  Y.  St.  Rep.  868.) 

Hansom,  S. — A  perusal  of  the  testimony  taken  in  this  case  must 
lead  any  mind  to  the  conclusion  that  the  testatrix,  for  a  consider- 
able period  before  her  death,  was  an  excitable,  sickly  woman,  who, 
on  slight  provocation  and  often  without  apparent  cause,  flew  into 
fits  of  passion  and  displayed  many  symptoms  of  a  diseased  mind. 
Conversation  on  topics  connected  with  certain  of  her  relatives  in- 
variably excited  her  to  some  outburst.  No  person  in  the  enjoy- 
ment of  her  senses  would  have  composed  the  letter  which  appears 
to  have  been  left  at  the  house  of  Judge  Angell  by  the  deceased. 
Nevertheless,  the  unanimous  testimony  of  the  witnesses  (with  pos- 


LUCID   INTERVAL.  59 

sibly  the  single  exception  of  Mrs.  Angell)  is  to  the  effect  that,  while 
these  manifestations  of  an  unhealthy  mind  were  chronic  from  the 
date  of  her  first  illness,  she  was  sometimes,  for  continued  periods 
of  time,  in  the  possession  of  her  faculties. 

In  the  light  of  these  facts,  the  law  as  laid  down  in  the  case  of 
Gombault  v.  Public  Administrator  (4  Brad.  226),  might  be  taken 
as  the  text  upon  which  to  write  a  decision  of  this  cause,  viz. : 
"  A  will  made  in  a  lucid  interval  may  be  valid ;  but  the  facts  estab- 
lishing intelligent  action  must  be  shown.  The  nature  and  charac- 
ter of  the  instrument  as  to  its  dispositions  have  great  influence,  and 
it  is  important  to  ascertain  whether  they  harmonize  with  the  dece- 
dent's affections  and  intentions  otherwise  expressed." 

In  the  case  at  bar  the  subscribing  witnesses  prove  the  due  execu- 
tion of  the  will,  and  that  at  the  time  the  testatrix  had  mental  ca- 
pacity to  make  a  will.  One  of  the  subscribing  witnesses  was  a  law 
clerk,  and  presumably  familiar  with  the  legal  requisites.  The  will 
was  drawn  by  Mr.  Rudd,  after  an  interview  with  testatrix,  who 
called  at  his  office  for  the  purpose  of  giving  instructions  therefor. 
Thereafter  he  received  a  note  from  testatrix  containing  substan- 
tially similar  directions,  and  the  will  was  drawn  accordingly,  and 
sent  to  her  by  a  messenger  who  superintended  its  execution  at  the 
house  of  the  decedent.  At  this  interview  with  Mr.  Rudd  he  testi- 
fies that  she  conversed  rationally  upon  the  subjects  introduced. 
That  the  will  is  in  accord  with  her  expressed  intentions  appears 
by  the  testimony  of  her  brother,  as  well  as  by  the  evidence  of  Mr. 
Rudd. 

In  the  case  of  Chambers  v.  Queen's  Proctor  (cited  in  Gombault 
v.  Public  Administrator,  wprcC)  the  decedent  died  by  his  own 
hand  the  day  after  he  executed  the  will.  There  had  been  indi- 
cation- of  insanity  immediately  before  and  after  its  execution. 
The   court    said:   "If  done  during  a  lucid    interval  the  act  will  be 

valid,  Dotwithstanding  previous  and  subsequent  insanity,"  and  the 
will  was  upheld  mainly  od  the  ground  of  the  reasonable  disposi- 
tions contained  in  the  instrument,  the  absence  of  proof  of  delusion 
■'it  'he  time  of  the  factum  and  the  rational  manner  in  which  the 
act  wa~  performed. 

Every  incident  specified  in  that  case  is  rapplied  here  for  the  pur- 
pose of    BUpporting    the  will:   and    1    am    of    opinion    that    the  will 

Bhould  he  admitted  to  probate. 


60  TESTAMENTARY   INCAPACITY. 

LUCID  INTERVAL.— BURDEN  OF  PROOF. 

White  v.   Driver. 

Prerogative  Court  op  Canterbury,  1809. 
(1  Phillim.  84.) 

Elizabeth  Manning  died  on  the  26th  of  January,  1805,  at  the 
house  of  Mr.  Driver,  at  Chadwell,  in  Essex ;  the  only  relations 
who  -  survived  her  were  two  sisters  and  a  nephew  and  niece,  the 
children  of  a  deceased  brother ;  her  will  bore  date  the  day  imme- 
diately preceding  her  death  ;  her  property  was  bequeathed  in 
thirds — one-third  to  the  nephew,  another  to  the  niece,  and  the  re- 
maining third  to  their  mother,  the  widow  of  her  brother,  who 
since  his  death  had  intermarried  with  Mr.  Driver.  The  will  pur- 
ported to  be  signed  and  executed  in  the  presence  of  three  wit- 
nesses. 

The  two  sisters  impeached  the  validity  of  this  instrument  on  the 
ground  of  the  insanity  of  the  testatrix. 

Many  witnesses  were  examined  who  deposed  to  the  childish  and 
extravagant  conduct  of  the  deceased  at  several  periods  of  her  life, 
while  others  testified  to  her  apparently  sane  and  rational  condition 
for  a  few  days  preceding  her  death. 

Judgment. 

Sir  John  Nicholl  (after  recapitulating  the  evidence) : 
The  evidence  in  this  case  sufficiently  establishes  that  the  deceased 
had  been  at  times  subject  to  insanity  for  several  years  preceding 
her  death,  and  even  down  to  the  21st  of  January,  1805,  only  four 
days  prior  to  the  execution  of  the  will  in  question,  but  it  does  not 
appear  that  the  disorder  was  uniform,  or  always  attacked  her  with 
an  equal  degree  of  violence.  She  was  at  large  the  greater  part  of 
her  life,  and  had  the  management  and  dominion  of  herself  and 
her  actions.  She  seems  to  have  had  violent  accessions  of  the  dis- 
order in  the  years  1793  and  1794,  in  1801,  and  again  in  1804. 
The  evidence,  however,  does  not  preclude  the  proof  of  lucid  in- 
tervals, although  it  raises  a  strong  presumption  against  sanity ; 
for  I  agree  with  the  counsel  for  the  next  of  kin  that,  wherever 
previous  insanity  is  proved,  the  burthen  of  proof  is  shifted,  and  it 
lies  on  those  who  set  up  the  will  to  adduce  satisfactory  proof  of 
sanity  at  the  time  the  act  was  done. 


LUCID    INTERVAL. — BURDEX    OE    PROOF.  61 

It  is  scarcely  possible,  indeed,  to  be  too  strongly  impressed  with 
the  great  degree  of  caution  necessary  to  be  observed  in  examining 
the  proof  of  a  lucid  interval ;  but  the  law  recognizes  acts  done  dur- 
ing such  an  interval  as  valid,  and  the  law  must  not  be  defeated  by 
any  overstrained  demands  of  the  proof  of  the  fact. 

In  this  case  the  deceased  had  been  subject  not  only  to  eccentrici- 
ties, but  to  delusion  and  derangement  at  different  periods  for  sev- 
eral years,  but  it  was  not  continuous ;  she  was  not  under  confine- 
ment ;  she  managed  her  own  affairs ;  she  earned  her  own  liveli- 
hood ;  when  she  came  out  of  the  workhouse  on  the  21st  of  Janu- 
ary she  acted  immediately,  and  continued  to  act  from  that  moment 
till  her  death,  as  a  sane  and  rational  person.  There  is  no  indica- 
tion of  any  fraud  or  circumvention  in  procuring  this  will,  or  even 
in  suggesting  it  to  her;  a  desire  to  make  a  will  is  not  with  her  an 
insane  topic;  it  is  recommended  very  properly  to  her  by  the  cler- 
gyman who  was  sent  for  to  pray  by  her,  and  the  intention  of  mak- 
ing it  was  first  communicated  by  the  deceased  to  an  old  acquaint- 
ance of  hers  of  the  name  of  Turner;  the  utmost  possible  precau- 
tion was  used  by  Turner  in  carrying  her  wishes  into  effect,  by  se- 
curing the  attendance  of  an  attorney,  two  medical  gentlemen,  and 
the  clergy  man. 

The  deceased  herself  declares  and  directs  the  disposition  of  her 
property:  the  disposition  itself  is  neither  insane  nor  unnatural ; 
two-thirds  are  left  to  the  children  of  a  deceased  brother,  and  the 
remaining  third  to  his  widow  and  her  second  husband,  and  these 
two  persons  are  appointed  her  executors;  her  sisters,  it  is  true,  are 
excluded;  but  they  were  both  married, and  possibly  had  oo  great 

claim-  on  lici-. 

The  Courl  has  the  concurrent  opinion' of  these  several  persons, 
viz.:  Mr.  Turner,  the  deceased's  friend;  Mr.  Williams,  the  clergy- 
man ;  the  solicitor,  the  two  apothecaries,  and  the  nurse;  and  tint, 
too,  with  all  their  suspicions  awakened,  and  their  vigilant  observa- 
tion called  forth  that  the  deceased  was  perfectly  sane  and  rational 
throughoul  the  whole  period  of  the  transaction  ;  some  of  them  also 
prove  thai  Bhe  was  equally  sane  and  rational  a  day  or  two  before, 
and  continued  so  till  her  death  on  the  subsequenl  day. 

Notwithstanding,  therefore,  all  the  jealousy  which  tl'"  Court 
should  feel  as  to  the  act  of  a  person  once  proved  to  have  been  in. 

.sua',  -till  under   thie   evidence  it    is   impossible    not    to  concur  with 


62  TESTAMENTARY   INCAPACITY. 

these  witnesses  in  opinion  that  the  deceased  was  of  sound  mind ; 
and,  consequently,  I  am  bound  to  pronounce  for  the  validity  of  her 
will. 

RATIONAL  ACT  RATIONALLY  DONE. 

Dame  By  z  an  tin  Clerke,  heretofore  Cartwriglit,  and  Carl- 
wright  v.  Cartwriglit  and  oilier*. 

Prerogative  Court  op  Canterbury,  1793. 

(1  Phillim.  90.) 
Judgment. 

Sir  William  Wynne. 

The  question  in  this  cause  arises  upon  the  will  of  Mrs.  Armyne 
Cartwriglit,  deceased,  which  has  been  opposed  and  propounded  on 
behalf  of  the  contending  parties. 

The  will  is  on  all  sides  admitted  to  be  in  the  handwriting  of  the 
deceased ;  and  it  is  in  these  words  : 

«  Wigmore  Street,  August  14,  1775.  I  leave  all  my  fortune  to 
My  nieces,  the  daughters  of  my  late  brother,  Thomas  Cartwriglit, 
Esq.,  except  £100  each  to  my  executors,  and  one  year's  wages  to 
my  servants  and  mourning.  I  appoint  Mrs.  Mary  Catherine  Cart- 
wright,  my  nieces'  mother,  and  Thomas  George  Skipworth,  Esq., 
of  JSTevvbold  Revel,  in  Warwickshire,  my  executors,  and  trustees 
for  my  nieces  until  they  come  of  age  or  marry ;  if  any  of  them 
should  die  sooner,  their  share  to  go  to  the  survivors  or  survivor. 

"  Armyne  Cartwright." 

It  appears  to  have  been  inclosed  and  sealed  up  in  a  cover;  and 
upon  the  back  of  the  cover  is  written  in  the  handwriting  of  the 
deceased,  "  This  is  my  will.  A.  Cartwright."  The  will  is  written 
in  a  remarkably  fair  hand,  and  without  a  blot  or  mistake  in  a  single 
word  or  letter.  Pleas  have  been  given  in  on  both  sides,  and  there 
is  a  pretty  full  account  of  the  family  and  connections  of  the  de- 
ceased, and  her  affections,  and  I  think  it  clearly  appears  the  will  is 
as  proper  and  natural  as  she  could  have  made,  and  it  is  likewise  as 
conformable  to  her  affections  at  the  time.  [Here  follows  a  state- 
ment of  facts  concerning  various  relatives  of  testatrix  and  her  rela- 
tions  with  them  ;  and  discussion  of  a  point  of  evidence.] 

The  only  witness,  then,  that  has  given  any  kind  of  account  of  the 
writing  of  the  will  is  Charity  Thorn,  who  was  present  at  the  time ; 


RATIONAL   ACT   RATIONALLY   DONE.  63 

there  was  another  witness  of  the  name  of  Gore,  but  she  is  dead ; 
therefore  Charity  Thom  is   the  only  person  who  can   give  any 
account  of  what  passed ;  and  the  account  she  gives  is  extremely 
material ;  for  I  cannot  agree  with  what  was  said  by  Dr.  Nicholl, 
that  this  will  relies  entirely  upon  the  face  of  the  will  itself,  and 
upon  the  evidence  of  Mrs.  Cottrell,  and  the  proof  of  handwriting, 
for  its  support.     I  think  the  evidence  of  Charity  Thom  goes  very 
materially  to  support  it ;  her  evidence  is  in  these  words ;  she  says 
to  the  loth  and  16th  articles  of  the  first  allegation,  "  That  whilst  the 
said  Dr.  Battie  visited  and  attended  the  said  deceased,  he  desired  the 
nurse  and  the  deponent  and  her  other  servants  to  prevent  her  from 
reading  or  writing,  as  he  gave  it  as  his  opinion  that  reading  and 
writing  might  disturb  and  hurt  her  head;   and  in  consequence 
thereof  she,  the  said  deceased,  was  for  some  time  kept  from  the  use 
of  books,  pens,  ink,  and  paper ;  that,  however,  some  time  prior  to 
the  writing  the  will  in  question  in  this  cause,  but  precisely  as  to 
time  the  deponent  cannot  speak,  she,  the  said  deceased,  grew  very 
importunate  for  the  use  of  pen,  ink,  and  paper,  and  frequently  asked 
for  it  in  a  very  clamorous  manner;  that  Dr.  Battie  endeavored  to 
dissuade  and  pacify  her,  and  told  her  that  whatever  she  wrote  he 
must  appear  as  a  witness  against,  but  that  if  she  would  wait  till  she 
got  well  he  would  be  a  witness  for  her  ;  that  the  said  deceased  con- 
tinuing importunate  in  her  desire  to  have  pen,  ink,  and  paper,  the 
said  Dr.  Battie  in  order  to  quiet  and  gratify  her  consented  that  she 
should  have  them,  telling  the  deponent  and  Elizabeth  Gore,  the 
nurse,  that  it  did  not  signify  what  she  might  write,  as  she  was  not 
fit  to  make  any  proper  use  of  pen,  ink.  and  paper;  that  as  soon  as 
Dr.  Battie  had  given  his  permission  that  she  should  have  pen,  ink, 
and  paper,  the  same  were  carried  to  her  ;   and  her  hands,  which  had 

been  \'<>r  some  time  before  kept  constantly  tied,  were  let  loose,  and 
she,  the  said  deceased,  sat  down  at  her  bureau  and  desired  this  de- 
ponent and  the  nurse  to  leave  her  alone  while  Bhe  wrote,  and  they, 
to  humour  her,  went  into  the  adjoining  room,  hut  stood  by  the  door 
thereof  bo  i-  they  could  watch  and  see  the  said  deceased  as  well  as 
if  they  had  been  in  the  Bame  room  with  her ;  thai  the  said  deceased 

at  firs!  wrote  upon  several  piece- of  |  >a  |  »er.  am  1  got  lip  in  B  wild  and 

furions  manner  and  tore  the  same,  and  went  to  the  lire). lace  and 
threw  the  pieces  in  the  grate,  one  after  the  other;  and  after  walk 
ing  up  and  down  the  room  many  times  in  a  wild  and  disordered 


64  TESTAMENTARY    INCAPACITY. 

manner,  muttering  or  speaking  to  herself,  she  wrote,  as  the  de- 
ponent believes,  the  paper  which  is  the  will  in  question ;  but  the 
deponent  further  saith  that  at  the  time  now  deposed  to  the  said  de- 
ceased had  not  shewn  any  symptoms  whatever  of  recovery  from  her 
disorder,  and  in  the  deponent's  opinion  she  had  not  then  sufficient 
capacity  to  be  able  to  comprehend  or  recollect  the  state  of  herself,  her 
family,  or  her  affairs,  and  during  the  time  she  was  occupied  in  writ 
ing,  which  was  upwards  of  an  hour,  she,  by  her  manners  and  gest- 
ures, shewed  many  signs  of  a  disordered  mind  and  insanity."  She 
says  to  the  25th  interrogatory,  "  that  the  deceased  was  occupied  up- 
wards of  an  hour,  nearly  two  hours  as  well  as  the  deponent  can  at 
this  distance  of  time  recollect,  in  making  the  will  in  question  ;  that 
is,  from  the  time  of  the  pen,  ink,  and  paper  being  given  her,  until 
she  left  off  writing ;  that  the  respondent  and  Elizabeth  Gore,  the 
nurse,  went  out  of  the  room  into  the  adjoining  room,  and  left  the 
said  deceased  alone  in  the  room,  but  not  out  of  their  sight ;  that  she 
said  she  was  going  to  write,  but  the  respondent  does  not  recollect 
whether  she  said  she  was  going  to  make  her  will,  but  the  respond- 
ent understood  that  she  was  writing  a  will ;  that  when  the  said  de- 
ceased was  left  in  the  room  by  herself  she  was  so  agitated  and  furi- 
ous that  the  respondent  was  very  fearful  she  would  attempt  some 
mischief  to  herself,  but  she  did  not  do  any  ;  that  a  candle  was  given 
to  the  said  deceased  to  seal  what  she  had  written,  but  the  respond- 
ent cannot  recollect  what  length  of  time  the  candle  was  by  her ; 
that  the  respondent  and  also  the  nurse  were  always  cautious  of 
trusting  a  caudle  near  the  said  deceased,  but  on  this  occasion  they 
did  permit  her  to  have  a  candle  notwithstanding  she  shewed  many 
marks  of  derangement  and  insanity  at  the  time,  this  respondent  and 
the  nurse  being  at  hand  and  watching  her  to  prevent  any  mischief ; 
that  the  "said  deceased  seemed  very  earnest  in  what  she  was  about, 
but  by  no  means  closely  settled,  as  whilst  she  was  writing  she  fre- 
quently started  up  and  walked  up  and  down  the  room  in  an  agi- 
tated manner ;  that  it  was  not  customary  to  untie  the  said  deceased's 
hands,  or  to  leave  her  alone  when  she  desired  it,  at  times  when  she 
wras  greatly  agitated  and  disordered,  although  sometimes  in  conse- 
quence of  her  earnest  intreaties  the  respondent  and  the  nurse  would 
untie  her  for  a  little,  and  on  the  occasion  now  particularly  deposed 
to  she  was  so  untied  in  consequence  of  the  permission  which  Dr. 
.Battie  had  given  her  to  have  pen,  ink,  and  paper,  but  she  was  not 


RATIONAL  ACT  RATIONALLY  DONE.  65 

\eit  alone,  as  the  deponent  and  the  nurse  stood  at  the  door  of  an 
adjoining  room  behind  the  said  deceased,  but  not  above  two  or 
three  yards  distant  from  the  bureau  where  she  sat  to  write." 

The  fact  then,  as  it  appears  by  the  evidence  of  this  witness,  is, 
that  the  paper  was  written  by  the  testatrix  herself,  no  other  person 
being  present  but  the  witness  who  gives  the  account  and  Elizabeth 
Gore,  who  is  since  dead,  neither  of  whom  gave  her  any  manner  of 
assistance  ;  and  she  tells  you,  that  the  deceased  having  first  of  all 
shewn  great  eagerness  and  anxiety  for  pen,  ink,  and  paper,  did 
write  this  will  the  moment  she  obtained  them  without  any  assist- 
ance from  any  one  ;  but  it  is  said  that  the  condition  of  the  deceased 
at  this  time  was  such  that  she  was  utterly  incapable  of  doing  that 
or  any  other  legal  act,  because  it  must  be  rational.  They  have 
certainly  completely  proved  that  the  deceased  was  early  afflicted 
with  the  disorder  of  her  mind,  I  think  about  the  year  1759,  and 
she  continued  under  the  influence  of  that  disorder  pretty  near  two 
years,  and  after  that  she  returned  to  her  father's  house  being  sup- 
posed to  be  perfectly  recovered,  and  that  she  continued  to  reside 
there  from  that  time  to  his  death  ;  that  after  that  being  in  posses- 
sion of  her  fortune  she  went  about  the  year  1768  to  housekeeping 
herself,  and  continued  so  to  do  as  a  rational  person  till  1774,  and 
in  the  month  of  November  in  that  year  she  went  on  a  visit  to  her 
relation,  Lord  Macclesfield,  at  Shirburn  in  Oxfordshire;  that  on 
the  26th  of  November  she  returned  to  London  in  a  disordered  and 
disturbed  state;  at  first  she  was  attended  by  a  physician.  Dr. 
Fothergill,  who  found  it  was  a  disorder  of  the  mind,  and  what  he 
had  Dot  directed  his  attention  or  study  to.  Itisproved  that  in  the 
latter  end  of  January  or  beginning  of  February,  1775,  Dr.  Battie 
was  Called  in,  and  he  treated    her  as   an    insane  person,  and   sent  a 

□arse  to  take  care  of  her  in  the  way  they  always  do  send  nurses  to 

patients  disordered  in  mind.  In  general  her  habit  and  condition 
of  body  and  her  manner  tor  several    months  before  the  date  of  the 

will  was  that  of  a  person  afflicted  wit  1 1  many  of  the  worst  symptoms 

"I  thai  dreadful  disorder,  and  continued  so  certainly  after  making 
the  will,  which  Was  the  I  If  h  of  August,  I  77">.      They  have  <-,rlainlv 

made  oul  that     Now  whal  is  the  legal  effect  of  such  proof  as  $n's? 

Certainly  not    wholly    to    incapacitate    such  a    person,  and    to  sa\    \ 

person  who  is  proved  to  be  in  rach  a  way  was  totally  and  neces- 
sarily incapacitated  from  makings  legal  will.     I  take  it  the  rule  of 


66  TESTAMENTARY    INCAPACITY. 

the  law  of  England  is  the  rule  of  the  civil  law  as  laid  down  in  the 
second  book  of  the  Institutes,1  "furiosi  autem  si  per  id  tempus 
fecerint  testamentum  quo  furor  corum  intermissus  est,  jure  testati 
esse  videntur."  There  is  no  kind  of  doubt  of  it,  and  it  has  been 
admitted  that  is  the  principle.  If  you  can  establish  that  the  party 
afflicted  habitually  by  a  malady  of  the  mind  has  intermissions,  and 
if  there  was  an  intermission  of  the  disorder  at  the  time  of  the  act, 
that  being  proved  is  sufficient,  and  the  general  habitual  insanity 
will  not  affect  it ;  but  the  effect  of  it  is  this,  it  inverts  the  order  of 
proof  and  of  presumption,  for,  until  proof  of  habitual  insanity  is 
made,  the  presumption  is  that  the  party  agent  like  all  human 
creatures  was  rational ;  but  where  an  habitual  insanity  in  the  mind 
of  the  person  who  does  the  act  is  established,  there  the  party  who 
would  take  advantage  of  the  fact  of  an  interval  of  reason  must 
prove  it ;  that  is  the  law  ;  so  that  in  all  these  cases  the  question  is 
whether,  admitting  habitual  insanity,  there  was  a  lucid  interval  or 
not  to  do  the  act.  Now  I  think  the  strongest  and  best  proof  that 
can  arise  as  to  a  lucid  interval  is  that  which  arises  from  the  act 
itself ;  that  I  look  upon  as  the  thing  to  be  first  examined,  and  if  it 
can  be  proved  and  established  that  it  is  a  rational  act  rationally 
done  the  whole  case  is  proved.2  What  can  you  do  more  to  estab- 
lish the  act?  because,  suppose  you  are  able  to  shew  the  party  did 
that  which  appears  to  be  a  rational  act,  rmd  it  is  his  own  act  entirely, 
nothing  is  left  to  presumption  in  order  to  prove  a  lucid  interval. 
Here  is  a  rational  act  rationally  done.  In  my  apprehension, 
where  you  are  able  completely  to  establish  that,  the  law  does  not 
require  you  to  go  further,  and  the  citation  from  Swinburne  does 
state  it  to  be  so.     The  manner  he  has  laid  down  is  (it  is  in  the  8 

1  Instit.,  lib.  2,  tit.  12,  sec.  2. 

-  Sir  William  Wynne,  who  laid  down  the  rule  in  Cartwright  v.  Cartwright, 
did  in  fact  look  into  all  the  grounds  and  circumstances  to  see  how  far  the  act 
was  the  residt  of  the  deceased's  own  will  and  intention.  "  That  Sir  William 
Wynne  did  not  consider  every  rational  act  rationally  performed  as  sufficient  to 
prove  a  lucid  interval,  we  may  collect  from  what  is  stated  in  a  subsequent  part 
of  his  judgment,  in  which  he  refers  to  cases  where  testamentary  acts  of  a 
rational  character  were  set  aside.  So  that  it  is  not  every  rational  act  rationally 
done,  which,  under  all  circumstances,  is  sufficient  to  constitute  a  lucid  interval; 
if  was  the  particidar  manner  in  which  the  act  was  done  in  that  case  which  led 
Sir  William  Wynne  to  the  conclusion  that  there  was  a  lucid  interval."  .... 
— Chambers  v.  Queen's  Proctor,  2  Curt.  415  (447). 

3  Swinburne,  Part,  ii.,  sec.  3 


RATIONAL   ACT   RATIONALLY   DONE.  6? 

part  in  which  he  treats  of  what  persons  may  make  a  will),  says  he, 
the  last  observation  is,  "  If  a  lunatic  person,  or  one  that  is  beside 
himself  at  some  times  but  not  continually,  make  his  testament,  and 
it  is  not  known  whether  the  same  were  made  while  he  was  of 
sound  mind  and  memory  or  no,  then,  in  case  the  testament  be  so 
conceived  as  thereby  no  argument  of  phrensy  or  folly  can  be  gath- 
ered, it  is  to  be  presumed  that  the  same  was  made  during  the  time 
of  his  calm  and  clear  intermissions,  and  so  the  testament  shall  be 
adjudged  good,  yea  although  it  cannot  be  proved  that  the  testator 
useth  to  have  any  clear  and  quiet  intermissions  at  all,  yet  never- 
theless I  suppose  that  if  the  testament  be  wisely  and  orderly  framed 
the  same  ought  to  be  accepted  for  a  lawful  testament/'  Unques- 
tionably there  must  be  a  complete  and  absolute  proof  the  party 
who  had  so  formed  it  did  it  without  any  assistance.  If  the  fact  be 
so  that  he  has  done  as  rational  an  act  as  can  be  without  any  assist- 
ance from  another  person,  what  there  is  more  to  be  proved  I  don't 
know,  anless  the  gentlemen  could  prove  by  any  authority  or  law 
what  the  length  of  the  lucid  interval  is  to  be,  whether  an  hour,  a 
day,  or  a  month  ;  I  know  no  such  law  as  that  ;  all  that  is  wanting 
is  that  it  should  be  of  sufficient  length  to  do  the  rational  act 
intended  ;  I  look  upon  it  if  you  are  able  to  establish  the  fact  that 
the  act  done  is  perfectly  proper,  and  that  the  party  who  is  alleged 
to  have  done  it  was  free  from  the  disorder  at  the  time,  that  is  com- 
pletely sufficient.  What  dor-  appeal-  to  be  the  case  from  the 
evidence  of  the-e  witnesses?  As  to  Charity  Thom,  who  seems  to 
me  to  he  the  principal  witness,  she  gives  an  opinion  of  her  own, 
and  that  opinion  is  againsl  the  validity  of  the  act,  and  she  expressly 
over  and  over  that  the  deceased  at  the  time  this  was  done  was 

not  -anr  and  was  not  capable  of  knowing  what  she  did  ;  that  is  the 

I'*  -nit  of  her  evidence.  The(  !ourt,  however,  docs  not  depend  upon 
the  opinion  of  witnesses,  bul  upon  the  facts  to  which  they  depose. 
All  the  facta  which  arc  deposed  to  (it  docs  appear  to  me)  are  sane ; 
the  witness's  opinion  arising  from  her  observations  doe-  not  give 
any  foundation  at  all  for  saying  the  testatrix  was  insane  at  the  time 

o|  making  the  will  ;    her  opinion    that    the    deceased  was    insane   at 

Buch  time  was  founded  on  bodily  affections  which  were  extraneous. 
What  is  the  fact  iys  thai  the  deceased  whilsl  employed  about 

the  act  rose  frequently  and  walked  backwards  and  forwards  about 
the  room,  that  she  did  not  set  down  closely  to  the  business,  that  she 


68  TESTAMENTARY    INCAPACITY. 

started  up,  and  that  she  tore  several  papers  and  threw  the  pieces 
into  the  grate,  then  wrote  others,  and  did  not  appear  to  her  to  act 
in  such  a  way  as  a  person  who  was  calm  would  do.  In  my  appre- 
hension, it  appears  from  this  account  her  manner  of  doing  it  was 
this :  she  wrote  several  papers,  and  if  she  saw  any  mistake  what- 
ever trifling  she  was  dissatisfied  and  probably  vexed  she  did  not 
write  in  such  a  way  as  fairly  to  answer  her  own  intention  ;  the 
paper  itself  has  no  mark  of  irritation  ;  a  more  steady  performance 
I  never  saw  in  my  life  ;  and  it  seems  hardly  consistent  that  a  person 
wild  and  furious  and  in  such  a  degree  of  insanity  as  she  is  stated  to 
be  should  write  in  such  a  way.  It  seems  to  me  a  very  extraordinary 
thing,  but  whatever  outward  appearance  there  was  it  had  no  effect 
on  the  writing  itself  ;  she  has  wrote  it  without  a  single  mistake  or 
blot  or  anything  like  it.  What  is  the  construction  ?  that  she  was 
endeavoring  to  write  her  will,  which  she  had  taken  a  determination 
to  do ;  that  she  made  mistakes  and  destroyed  those  papers  in  which 
she  had  made  them,  that  she  knew  how  to  correct  them,  and  did 
correct  them,  and  at  length  wrote  and  finished  as  complete  a  paper  as 
any  person  in  England  could  have  done.  Is  this  insanity  ?  In  my 
apprehension,  it  is  not ;  it  seems  to  me  she  was  vexed  at  her  mis- 
takes, which  I  think  shews  that  she  had  at  that  time  her  senses 
about  her,  and  I  think  it  appears  likewise  she  was  not  then  in  fact 
in  the  disturbed  condition  she  was  before  and  after.  They  say 
they  were  generally  forced  to  keep  the  strait  waistcoat  upon  her, 
that  even  then  she  would  thrust  out  her  arms  if  she  could,  and 
strive  to  thrust  her  fingers  in  their  eyes,  and  in  short  do  every 
thing  that  would  do  mischief.  Is  there  any  mischief  in  the  present 
case  when  the  strait  waistcoat  is  taken  off  ?  Nothing  like  it ;  a$ 
soon  as  it  is  taken  off  she  says,  "  Give  me  pen,  ink,  and  paper  "j 
and  when  it  is  given  her  she  says,  "  Leave  me,  for  I  am  going  td 
write  ";  and  they  go  out  of  the  room  ;  she  is  not  disturbed  at  their 
watching  her,  but  pursues  her  own  intention  and  completes  the 
paper ;  she  enquires  the  day  of  the  month,  and  an  almanack  ia 
given  to  her  by  one  of  the  nurses  who  was  watching  her,  and  the 
day  of  the  month  was  pointed  out  to  her ;  she  then  calls  for  a 
candle  ;  and  they  say  they  used  to  be  cautious  not  to  trust  her  with 
a  candle,  and  were  forced  to  hold  it  at  a  distance  from  her  if  she 
read  the  newspaper  ;  but  still  in  this  case  they  give  her  a  candle 
that  she  may  use  it  in  order  to  seal  the  paper ;  no  harm  was  done 


RATIONAL  ACT  RATIONALLY  DONE.  09 

of  any  kind,  and  none  attempted  ;  everything  that  was  done  was 
for  the  purpose  of  completing  the  act ;  and  am  I  to  conclude  she 
was  insane,  because  she  might  have  bodily  affections,  irritations  of 
nerves,  when  everything  which  was  rational  is  done,  and  as  collect- 
edly and  as  exactly  as  any  person  of  the  clearest  sense  would  have 
done,  and  of  her  own  head  entirely.  The  gentlemen  have  said  all 
this  is  mere  form.  Is  it  mere  form  that  a  person  so  situated  as 
she  was  should  of  her  own  accord  write  a  will  containing  the  most 
rational  disposition  of  her  property,  leaving  all  her  fortune  to  her 
nieces,  the  daughters  of  her  deceased  brother  who  were  the  most 
natural  to  her,  omitting  her  nephew  who  was  possessed  of  a  large 
fortune?  Is  it  mere  form  that  she  should  appoint  for  her  execu- 
tors and  trustees  the  mother  of  those  nieces,  and  her  nearest  rela- 
tion by  the  father's  side,  describing  accurately  the  place  where  he 
lived,  and  that  she  should  create  a  survivorship  amongst  them  if 
any  should  die  before  twenty-one?  Is  this  only  form?  It  is  the 
very  essential  part  and  substance  of  a  will,  and  that  will  as  rational 
a  will  a>  she  or  any  other  person  could  have  made.  Therefore, 
taking  the  fact  to  be  that  it  was  done  of  her  own  accord,  it  leaves 
nothing  to  be  proved;  that  being  established  puts  the  matter 
beyond  all  possibility  of  doubt,  and  I  think  there  can  be  no  ques- 
tion but  that  she  had  a  legal  capacity  ;  but,  say  they,  we  can  hardly 
admit  this  is  quite  such  a  paper  as  it  appears,  and  that  it  is  the 
mere  spontaneous  act  of  the  testatrix  herself;  they  surmise,  and  to 
be  >un-  it  is  as  groundless  asurmise  in  point  of  evidence  as  possible, 
that  it  was  done  at  the  suggestion  of  Mrs.  Cottrell,  but  it  appears 
that  she  was  at  that  time  out  of  town  and  had  been  so  for  a  month 
before  :   but  ie  the  (  lourt  to  suppose    that  without  evidence,  and    is 

there  anything  to  support  it  \  certainly  not,  and  I  cannot  presume 

any  BUCh    thing.      If   you    have  a  mind    to    prove    this    was   by  the 

suggestion  of  Mr~.  Cottrell,  you  may;  if  you  do  not,  1  musl  take 

it  to  he,  what  appears  from  the  evidence,  the  pure  and  spontaneous 
ad  of  the  party  herself,  and    that   Mrs.  Cottrell  knew  nothing  of  it 

till  she  was  informed  of  it.     [Sir  William  Wynne  here  examines 

further  evidence  which  he  finds  conclusive  in  showing  that  testatrix 
bad  frequenl   lucid   intervals  besides    the  one  in  question,       lie  also 

tate   and  examine-  the  cases  of   A.ttorney-General  v.  Parnther,1 


1  S...  :{  Brown  (\  < '.  441. 


70  TESTAMENTARY  INCAPACITY. 

Clarke  v.  Lear,1  Coglilan   v.  Coghlan,  and  Greenwood  v.  Green- 
wood, and  then  proceeds  as  follows :] 

I  am  of  opinion  in  this  case  that  the  deceased  by  herself  writing 
the  will  now  before  the  Court  hath  most  plainly  shewn  she  had  a 
full  and  complete  capacity  to  understand  what  was  the  state  of  her 
affairs  and  her  relations,  and  to  give  what  was  proper  in  the  way 
she  has  done.  She  not  only  formed  the  plan,  but  pursued  and 
carried  it  into  execution  with  propriety  and  without  assistance.  In 
my  apprehension  that  would  have  been  alone  sufficient,  but  it  is 
further  affirmed  by  the  recognition  and  the  delivery  of  the  will. 
Therefore,  under  all  these  circumstances  I  have  no  doubt  in  pro- 
nouncing this  to  be  the  legal  will  of  the  deceased. 


INSANITY  PROVED.— WHEN  PRESUMED  TO  CONTINUE. 

Sarepta  Hix  v.  Isaac  Wliittemore. 

Massachusetts  Supreme  Judicial  Court,  1842. 
(4  Met.  545.) 

Writ  or  Error  to  reverse  a  judgment  recovered  by  the  de- 
fendant in  error  against  the  plaintiff  in  error,  at  the  December 
term,  1837,  of  the  Court  of  Common  Pleas.  The  original  writ 
against  the  plaintiff  in  error  was  served  on  the  20th  of  Novem- 
ber, 1837,  by  leaving  a  summons  at  her  last  and  usual  place  of 
abode  in  Athol.  The  error  assigned  was,  that  at  the  time  of  the 
service  of  the  said  original  writ,  and  at  the  time  of  the  rendition 
of  said  judgment,  the  plaintiff  in  error  was  insane.  Issue  to  the 
country. 

At  the  trial  the  insanity  of  the  plaintiff  in  error,  in  the  spring 
of  1837,  either  resulting  from  or  connected  with  a  violent  dis- 
ease, was  both  proved  and  admitted.  Evidence  was  offered  by  the 
defendant  in  error  tending  to  prove  that  she  (the  plaintiff  in  error) 
recovered  her  reason  during  the  following  summer,  and  continued 
sane  till  she  was  carried  to  the  house  of  correction  in  Worcester, 
on  the  10th  of  November,  1837 ;  and  evidence  was  offered  by  the 
plaintiff  in  error,  tending  to  prove  that  she  continued  insane  dur- 
ing that  period. 

1  See  ante,  p.  23. 


INSANITY  PROVED.  — WHEN  PRESUMED  TO  CONTINUE.      71 

The  jury  were  instructed  "  that  the  insanity  of  the  plaintiff  in 
error,  in  the  spring  of  1837,  being  proved  and  admitted,  the  bur- 
den of  proof  was  on  the  defendant  in  error  to  show  that  she  had 
60  perfectly  recovered  her  mind  as  to  be  the  proper  subject  of  a 
suit  at  the  time  of  the  service  of  the  original  writ  upon  her ;  and 
that  if  the  jury  were  satisfied  that  she  had  recovered  her  mind 
during  the  summer  or  autumn  of  1837,  the  burden  of  proof  was 
then  shifted  upon  her  to  show  the  insanity  at  the  time  of  the  ser- 
vice of  the  writ  and  the  rendition  of  the  judgment  in  the  original 
action." 

The  jury  returned  a  verdict  for  the  plaintiff  in  error,  and  the 
defendant  in  error  alleged  exceptions  to  the  said  intructions. 

Dewey,  J. — Every  man  being  presumed  to  be  sane,  till  the  con- 
trary is  shown,  the  burden  of  proof  certainly  rests,  in  the  first 
instance,  on  the  party  alleging  the  insanity.1  How  far  this  burden 
is  changed  by  the  mere  fact  of  proof  of  insanity  at  a  particular 
period  is  the  precise  point  of  the  present  inquiry. 

The  general  expressions  in  some  of  the  books  that  treat  of  the 
subject  are  certainly  broad  enough  to  warrant  the  instructions 
given  in  the  present  case.  See  3  Stark,  Ev.  1709 ;  Greenleaf  on 
Ev.,  sec.  42;  Mathews  on  Presump.  Ev.  (Amer.  ed.)  20,  21.  But 
a  careful  analysis  of  the  principles  upon  which  presumptions  are 
allowed  to  have  force  and  effect,  will  show  that  the  proof  of  the 
insanity  of  an  individual,  at  a  particular  period,  does  not  neces- 
sarily authorize  the  inference  <»f  his  insanity  at  a  remote  subse- 
quent period,  or  even  several  mouths  later. 

The  force  of  presumptions  arises  from  our  observation  and  ex- 
perience of  the  mutual  connection  between  the  facts  shown  to 
exist  and  those  Bought  to  he  established  by  inference  from  those 
facts.  Now  neither  observation  nor  experience  shows  us  that  per- 
sons who  are  Insane  from  the  effect  of  .some  violent  disease,  do  not 

Usually  recover  the  right  use  of  their  mental  faculties.      Such  eases 

are  not  unusual,  and  the  return  of  a  sound  mind  may  be  antici- 
pated   from    the   subsiding    or   removal    of    the   disease    which    has 

prostrated  their  minds.  It  is  not,  therefore,  to  he  Btated  as  an  un- 
qualified maxim  of  the  law,  "once  insane,  presumed  to  he  always 
insane";  bul  reference  must  be  had  to  the  peculiar  circumstam 


Fox  :i  divergence  "i  authority  on  tin    point,  Bee  index,  "  Burden  of  Proof." 


72  TESTAMENTARY   INCAPACITY. 

connected  with  the  insanity  of  an  individual,  in  deciding  upon  its 
effect  upon  the  burden  of  proof,  or  how  far  it  may  authorize  the 
jury  to  infer  that  the  same  condition  or  state  of  mind  attaches  to 
the  individual  at  a  later  period. 

There  must  be  kept  in  view  the  distinction  between  the  infer- 
ences to  be  drawn  from  proof  of  an  habitual  or  apparently  con- 
firmed insanity  and  that  which  may  be  only  temporary.  The  ex- 
istence of  the  former,  once  established,  would  require  proof  from 
the  other  party  to  show  a  restoration  or  recovery  ;  and,  in  the  ab- 
sence of  such  evidence,  insanity  would  be  presumed  to  continue. 
But  if  the  proof  only  shows  a  case  of  insanity  directly  connected 
with  some  violent  disease,  with  which  the  individual  is  attacked, 
the  party  alleging  the  insanity  must  bring  his  proof  of  continued 
insanity  to  that  point  of  time  which  bears  directly  upon  the  subject 
in  controversy,  and  not  content  himself  merely  with  proof  of  in- 
sanity at  an  earlier  period. 

Such  we  take  to  be  the  rule,  as  founded  in  reason  and  sanctioned 
by  the  decided  cases.  Thus  in  Cartwright  v.  Cartwright  (1  Phillim. 
100),  it  was  held  that  "  where  habitual  insanity  in  the  mind  of  a 
person  is  established,  there  the  party  who  would  take  advantage  of 
the  fact  of  an  interval  of  reason  must  prove  it,"  taking  the  distinc- 
tion which  we  have  mentioned ;  1  Williams  on  Executors,  17,  18 ; 
Swinburne,  in  his  Treatise  on  Wills,  Part  II.,  sec.  3,  states  the 
general  presumption  of  law,  that  a  testator,  who  is  proved  to  have 
been  void  of  the  use  of  reason  and  understanding,  continues  in  the 
same  state.  But,  among  other  exceptions  to  this  rule,  he  mentions 
the  case  of  a  testator's  falling  "  into  some  frenzy,  upon  some  acci- 
dental cause  which  is  afterwards  taken  away."  And  this  exception 
is  recognized  in  1  Collinson  on  Lunacy,  55,  and  Shelford  on  Luna- 
tics, 275.  Lord  Hale  says  accidental  madness  proceeds  sometimes 
from  the  violence  of  a  disease.     1  Hale  P.  C.  30. 

New  trial  granted. 

DRUNKENNESS.— WHAT    PRESUMPTION  OP    INCAPACITY. 
Ayrey  and  others  v.  Hill. 

Prekogative  Court  of  Canterbury,  1824. 
(2  Add.  206.) 
The  deceased,  Peter  Hurman,  otherwise  Efford,  died  on  the  5th 
of  August,  1821,  leaving  a  will  bearing  date  25th  of  June  in  that 


DRUNKENNESS. — WHAT  PRESUMPTION  OF  INCAPACITY.   73 

year,  the  validity  of  which  is  the  point  in  issue.  It  makes  con- 
siderable provision  for  the  family  of  Mr.  Pike,  one  of  the  execu- 
tors, devises  and  bequeaths  a  freehold  estate  for  life,  together  with 
the  residue  of  the  testator's  personalty  for  life,  to  Lucy  Hill,  his 
niece  and  sole  surviving  next  of  kin,  and  bequeaths  certain  other 
sums  to  her  husband  if  he  survive  her,  and  to  charity,  and  makes 
provision  for  three  executors.  The  personalty  bequeathed  by 
this  will  is  stated  to  amount  in  value  to  about  £5,000,  and  the 
realty  devised  to  between  £5,000  and  £10,000. 

Judgment. 

Sir  John  Nicholl  (after  stating  the  facts). — This  instrument, 
such  as  I  have  described  it,  is  propounded  by  the  executors,  and  is 
opposed  by  Lucy  Hill,  the  testator's  niece,  and  only  known  rela- 
tion ;  her  alleged  ground  of  opposition  being,  in  a  word,  the  as- 
serted testator's  incapacity.  Her  allegation,  responsive  to  a  con- 
didit,  pleads,  generally,  in  the  third  article,  that  the  deceased  had 
long  been  subject  to  mental  derangement,  more  particularly  from 
about  the  middle  of  the  year  1817;  of  which  it  furnishes  a  variety 
of  (supposed)  instances  in  the  fifteen  succeeding  articles  ;  summing 
up  the  whole  by  pleading,  in  the  nineteenth  article,  that  the  de- 
eea  led  was  not  of  testamentary  capacity  on  the  25th  day  of  June, 
1821,  but  that  he  was  in  the  custody,  and  under  the  control,  of  the 
executors  (one  or  all)  at  that  time,  upon  whose  sole  suggestion  the 
will  in  question  was,  de  facto,  made  and  signed  by  the  deceased. 
To  this  it  is  answered,  on  the  part  of  the  executors,  that  the  de- 
ceased was  never  insane  ;  for  that  he  conducted  himself  rationally 
at  all  times,  when  not  under  the  excitement  produced  by  spirituous 
liquors,  to  the  moderate  use  of  which,  it  may  be  stated,  once  for 
all,  as  an  admitted  fact  in  the  cause,  that  the  deceased  had  been 
addicted  \\,v  a  number  of  years. 

Now  this  being,  in  Bubstance,  the  case  on  both  sides,  it  appears 
to  me  that  the  testimony  of  Mrs.  Hill's  own  witnesses  fails  to 
make  out  a  ca-e  of  (proper)  insanity,  or   mental  derangement. 

They    Bpeafa    tO    the   deceased's   extravagant    conduct,    indeed,  in    a 

variety  of  instances;  but  they  admit  him  in,  at  least,  by  far  the 
greater  part  of  these,  to  have  been  intoxicated  at  the  time;  when 
it  does  -'■cm  that  he  not  only  talked  wildly  and  incoherently,  but 
that  he  acted,  and  conducted  himself,  in  all  respects,  very  like  a 


74  TESTAMENTARY    INCAPACITY. 

madman.  Even  Fagg,  the  witness  who  deposes  most  strongly  in 
this  particular,  concludes  by  stating  the  deceased,  in  her  apprehen- 
sion, "a  mad  drunken  fool"  \  obviously  connecting,  as  appears  by 
this  phrase,  in  her  view  of  the  case,  his  supposed  insanity,  with  his 
admitted  habits  of  gross  intoxication.  On  the  contrary,  however, 
it  is  pleaded,  and  proved,  that  the  deceased  at  no  time  was  under 
any  control  as  to  the  management  of  his  person  or  property  ;  that 
he  -received  rents ;  made  payments ;  transferred  stock  ;  drew 
drafts ;  settled  accounts ;  bought  and  sold  property ;  in  a  word, 
that  he  was  perfectly  sui  juris  to  the  last,  with  respect  to  the  con- 
duct both  of  himself  and  his  affairs,  in  all  particulars. 

The  testator's  case  then  appears  to  the  Court  to  be  that  of  a 
person  not  {properly)  insane  or  deranged ;  but  to  be  that  of  a  per- 
son addicted  to  a  species  of  ebriety,  which,  during  its  subsist- 
ence, frequently  produces,  and  is  proved,  in  the  present  instance, 
to  have  actually  produced,  upon  the  subject  of  it,  effects  very 
similar  to  those  which  insanity,  or  mental  derangement  (properly 
so  called)  would,  or  might,  have  occasioned.  In  other  words,  the 
deceased  appears  to  the  Court,  not  in  the  light  of  a  madman,  but 
in  that  of  a  person  habitually  addicted  to  the  use  of  spirituous 
liquors,  under  the  actual  excitement  of  which  he  talked  and  acted, 
in  most  respects,  very  like  a  madman. 

Now,  viewed  as  with  reference  to  the  point  at  issue,  the  cases  in 
question,  notwithstanding  their  apparent  similarity,  are  subject,  in 
my  judgment,  to  very  different  considerations.  Where  actual 
(proper)  insanity  is  proved  to  have  once  shewn  itself,  either  per- 
fect recovery,  or,  at  least,  a  lucid  interval  at  the  time  of  the  making, 
must  be  clearly  proved,  to  entitle  any  alleged  testamentary  instru- 
ment to  be  pronounced  for  as  a  valid  will.  Either  of  these,  how- 
ever, the  last  especially,  is  highly  difficult  of  proof,  for  the  follow- 
ing reason  :  Insanity  will  often  be,  though  latent ;  so  that  a  per- 
son may,  in  effect,  be  completely  mad  or  insane,  however,  on  some 
subjects,  and  in  some  parts  of  his  conduct,  apparently,  rational. 
But  the  effects  of  drunkenness  or  ebriety  only  subsist,  whilst  the 
cause,  the  excitement,  visibly  lasts  :  there  can  scarcely  be  such  a 
thing  as  latent  ebriety  :  so  that  the  case  of  a  person  in  a  state  of 
incapacity  from  mere  drunkenness  or  ebriety,  and  yet  capable,  to 
all  outward  appearance,  can  hardly  be  supposed.  Consequently, 
in  the  last,  which,  in  my  judgment,  is  this,  description  of  case,  all 


DRUNKENNESS. — WHAT  PRESUMPTION  OF  INCAPACITY.   75 

which  requires  to  be  shewn  is  the  absence  of  the  excitement  at  the 
time  of  the  act  done ;  at  least,  the  absence  of  the  excitement  in 
any  such  degree  as  would  vitiate  the  act  done  ;  for  I  suppose  it 
will  readily  be  conceded  that,  under  a  mere  slight  degree  of  that 
excitement,  the  memory  and  understanding  may  be,  in  substance, 
as  correct  as  in  the  total  absence  of  any  exciting  cause.  Whether, 
where  the  excitement  in  some  degree  is  proved  to  have  actually 
subsisted  at  the  time  of  the  act  done,  it  did  or  did  not  subsist  in 
the  requisite  degree  to  vitiate  the  act  done,  must  depend,  in  each 
case,  upon  a  due  consideration  of  all  the  circumstances  of  that  case 
itself,  in  particular  ;  it  belonging  to  a  description  of  cases  that  ad- 
mits of  no  more  definite  rule,  applicable  to  the  determination  of 
them,  than  the  one  now  suggested,  that  I  am  aware  of. 

In  this  view  of  the  question  before  the  Court,  it  must  be  ob- 
vious, that  the  result  will  depend  upon  the  deceased's  state  and 
condition  at  the  time  (to  be  collected,  principally,  from  what 
passed  at  the  time)  of  his  giving  instructions  for,  and  signing,  the 
instrument  now  propounded  as,  and  for,  his  last  will.  But  pre- 
vious to  considering  this,  it  may  not  be  improper  that  the  Court 
should  briefly  notice  one  or  two  outlying  circumstances. 

[Here  Sir  John  Nicholl  examines  the  provisions  of  the  will  in 
the  light  of  the  testimony,  and  finds  them  in  fact  reasonable  and 
prudent.  He  also  finds  that  the  due  execution  of  the  will  is  satis- 
factorily shown,  and  that  there  was  no  undue  influence;  on  the 
point  of  intoxication  at  the  very  time  of  making  the  will,  one  of 
the  witnesses  testified  that  testator  sipped  whiskey  while  thus  en- 
gaged; that  he  spoke  inarticulately;  that  Mr.  Ayrey,  who  was 
present,  said  at  the  time,  "  I  think  he  is  tipsy,"  or  "  I  think  he  i- 
drunk  ";  and  that  ho  himself  "  thought  that  the  deceased  was  then, 
to  a  certain  extent,  affected  by  drinking  spirituous  liquors,"  though 
I,.,  believed  him  to  have  testamentary  capacity.  The  Judge  finds 
no  sufficient  proof  of  incapacity  iVoin  drunkenness.]  It  appears  to 
mo  to  he  the  will  of  a  free  and  capable  testator ;  and,  as  such,  L 

pronounce  tor  it. 


76  TESTAMENTARY   INCAPACITY. 

BELIEF   IN   WITCHES. 
Matter  of  Vedder. 

Surrogate's  Court,  Albany  County,  New  York,  1888. 

(6  Dem.  92.) 

Application  for  probate  of  a  paper  purporting  to  be  the  last  will 
of  Eliza  Ann  Vedder,  who  died  January  19,  1887,  at  the  age  of 
seventy-seven  years,  by  which  nearly  all  the  property  of  the  dece- 
dent was  devised  and  bequeathed  to  her  husband,  the  proponent 
here.  The  nephews  and  nieces  of  decedent  oppose  the  probate  on 
the  ground,  among  others,  that  the  testatrix  was  not  of  sound  mind, 
memory,  and  understanding.  There  was  no  issue  of  the  marriage. 
The  will  in  question  was  executed  in  August,  1883,  at  the  house  of 
decedent  and  proponent.  At  the  same  time  and  place,  Mr.  Ved- 
der, the  proponent,  made  and  executed  a  will,  whereby  he  gave  all 
his  property  to  his  wife,  the  testatrix  here.  Among  the  principal 
facts  proved  by  the  contestants,  were  the  following:  That  the 
testatrix  was  very  old  and  in  a  gradually  failing  physical  condition ; 
that  she  put  irons  in  the  cream,  and  marked  the  bottom  of  the  churn 
with  the  sign  of  the  cross,  to  make  the  butter  come ;  that  she  said 
she  could  not  keep  her  horses  fat  because  the  witches  rode  them  at 
nisrht :  that  she  believed  in  witches  and  witchcraft :  that  she  told  a 
neighbor  that  she  had  seen  a  headless  horseman  riding  across  her 
field  ;  that  she  told  another  neighbor  that  her  crying  child  was  be- 
witched, and  that  if  she  would  search  its  pillow  she  would  find  a 
hard  bunch  of  feathers  therein,  which  was  the  witch,  and  that  she 
should  boil  this  bunch  at  night  in  a  pot,  and  that  at  midnight  she 
would  hear  some  one  knock,— that  she  should  not  answer,  and  in 
the  morning  the  body  of  the  witch  would  be  found  outside  the 
door ;  that  she  told  a  certain  woman  to  put  live  coals  and  a  red 
garter  under  her  churn,  and  that  the  butter  would  come  ;  that,  once 
upon  a  time,  she  took  her  nephew  (a  contestant)  to  dig  for  gold  on 
her  farm,  and  had  him  carry  a  red  rooster  under  his  arm  for  good 
luck,  and  that  they  dug,  and  got  no  gold  ;  that  she  said  she  desired 
to  be  robed  like  the  angels  when  she  died  ;  that  all  these  strange 
things  were  said  and  done  by  her  during  the  last  quarter  of  a  cen- 
tury of  her  life ;  and  the  witnesses  who  testify  of  these  things  be- 
lieved she  was  irrational  because  of  them,  although  some  of  them 
said  that  in  her  ordinary  affairs  she  was  not  a  foolish  woman. 


BELIEF  IN   WITCHES.  77 

On  the  other  hand,  the  proponent  proved  that,  in  the  perform- 
ance of  her  household  duties  and  farm  business,  the  testatrix  was  a 
prudent,  sensible  woman  ;  that  she  kept  her  house  neat  and  clean ; 
that,  within  a  few  years  before  her  death,  she  was  a  party  to  an 
agreement  to  let  the  farm  on  shares,  and  that  she  gave  wise  direc- 
tions as  to  how  it  should  be  worked  ;  that  she  was  a  life-long  mem- 
ber of  the  Eeformed  Dutch  Church  in  her  neighborhood,  and  at- 
tended services  regularly  until  the  last  two  or  three  years  of  her 
life,  when  she  was  disabled  by  rheumatism  and  other  bodily  in- 
firmity ;  that  she  frequently  read  her  Bible  and  prayed  with  her 
pastor ;  that  her  married  life  was  happy  and  peaceful,  and  that  re- 
spectful and  affectionate  relations  existed  between  her  husband  and 
herself;  that  a  belief  in  visions  was  a  part  of  her  religious  faith ; 
that  she  had  an  intense  way  of  expressing  her  religious  experience ; 
that  many  of  her  expressions  were  borrowed  from  the  Bible ;  that 
she  accepted  the  sacred  Scriptures  as  the  inspired  word  of  God  ;  that 
she  believed  in  their  inspiration  as  declared  in  the  creed  of  the  Ee- 
formed Dutch  Church ;  and  the  witnesses  who  testified  to  these 
things  believed  her  to  have  been  rational.     The  subscribing  wit- 
nesses were  clear  and  emphatic  in  their  belief  and  opinion  that  the 
testatrix  was  of  sound  mind  and  memory  when  she  executed  the  will. 
Woods,  S.  (after  stating  the  foregoing  and  many  other  facts  of 
similar  tenor).— There  is  no  evidence  whatever  to  show  that  any  or 
all  of  these  beliefs,  delusions,  eccentricities,  or  peculiarities  had  the 
slightest  connection  with,  or  influence  upon,  her  testamentary  act 
here  in  question.     [Here  follows  a  discussion  of  the  weight  of  cer- 
tain expert  testi ay,  of  the  New  York  rule  of  testamentary  capac- 
ity, and  of  numerous  authorities,  and  of  the  reasonableness  of  the 
will  in  question.    (  kracerning  the  belief  of  the  testatrix  in  witches, 
the  Surrogate  thru  says :]   . 

Be  ireely  two  centuries  ago  the  great  body  of  Christians  believed 
in  witchcraft,  and,  under  the  Bolemn  sanction  of  the  law,  hundreds 
of  poor  old  ladies,  condemned  as  witches,  were  tortured  and  died 
amidst  the  blazing  fegots.  It  is  said  that  during  the  Long  Parlia- 
ment hundreds  were  even  thus  put  todeatb  in  England.  The  lurid 
light  of  these  judicial  fires  is  spread  on  the  pages  of  A.merican  his- 
tory. Commanding  intellects-  Coke,  the  mighty  Bacon,  wise  Sir 
Matthew  Bale,  Martin  Luther,  John  Wesley,  Cotton  Mather— be- 
lieved in  witchcraft. 


78  TESTAMENTARY   INCAPACITY. 

Profound  theologians  contended  that  a  disbelief  in  it  was  rank 
heresy,  and  they  cited  Scripture  to  their  purpose :  "  Thou  shalt  not 
suffer  a  witch  to  live  "  (Exodus  xxii.  18).  [Other  references  to  the 
Bible  are  here  given.] 

The  Bible  was  the  book  of  books  to  the  aged  testatrix.  Its  les- 
sons had  sunk  deep  in  her  heart,  its  language  was  often  on  her  lips, 
it  was  to  her  the  precious  fountain  of  God's  inspiration.  It  is  not 
passing  strange  that  the  ancient  belief  in  witchcraft  survived  in  her, 
and  found  expression  and  action  as  has  been  recorded.  I  am  per- 
suaded that  her  beliefs,  peculiar  and  strange  in  many  respects,  in 
the  clearer  light  of  to-day,  did  not  disqualify  her  from  disposing  of 
her  property  by  will,  and  I  accordingly  hold  that  she  was  compos 
mentis,  and  that  the  paper  propounded  as  her  will  should  be  en- 
titled to  probate. 

INSANE  DELUSIONS  AFFECTING  WILL. 
Matter  of  Lockwood. 

Surrogate's  Court,  Albany  County,  New  York,  1889. 
(28  N.  Y.  St.  Rep.  164.) 

Woods,  S. — Seley  Lockwood  died  at  South  Westerlo  on  the 
20th  of  October,  1888,  aged  seventy-two  years.  On  the  16th  of 
February,  1880,  he  executed  the  proposed  will,  with  the  formali- 
ties required  by  law,  in  the  presence  of  two  witnesses  who  had  seen 
him  only  a  few  times  and  knew  very  little  of  him  or  his  antece- 
dents. His  estate  consisted  of  personal  property  only,  deposited  in 
savings  banks,  and  which  had  been  so  kept  for  many  years.  A 
considerable  portion  of  it  was  in  the  National  Savings  Bank  at 
Albany,  and  the  other  books  of  his  bank  deposits  were  left  thereat 
by  him  for  safe  keeping.  Mr.  Stephens,  the  executor  named  in 
the  proposed  will,  is  the  secretary  of  that  bank. 

In  the  will  Mr.  Lockwood  bequeathed  one-half  of  his  property 
to  the  State  Lunatic  Asylum  at  Utica,  and  the  other  half  to  the 
orphan  asylum  at  Albany,  and  he  inserted  therein  a  provision  to 
this  effect :  "  I  give  and  bequeath  to  my  executor,  Albert  P.  Ste- 
phens, of  Albany  city,  a  sum  from  my  estate  up  as  high  as  one- 
quarter,  large  enough  to  be  over  and  above  any  bribe  that  may  be 
offered  by  my  brothers,  sisters,  and  children  for  the  redemption  of 
this  will  and  their  heirship  to  my  estate." 


INSANE   DELUSIONS   AFFECTING   WILL.  79 

This  will  is  a  holograph,  entirely  in  decedent's  handwriting,  but 
as  he  had  executed  another  will  in  the  presence  of  one  of  the  sub- 
scribing witnesses  to  this  one  but  a  short  time  before,  and  had  had 
one  drawn  about  that  time  by  a  Mr.  Robbins,  the  contents  of  which 
do  not  appear,  it  may  have  been  copied  therefrom. 

Decedent  had  resided  most  of  his  life  in  the  neighborhood 
where  he  died.  He  once  went  South,  but  to  what  point  does  not 
appear.  At  another  time  he  went  West,  near  Kansas  City,  and  at 
another  time,  from  January  10  to  October  9,  1849,  when  about 
thirty-three  years  of  age,  he  was  an  inmate  of  the  insane  asylum  at 
Utica,  having  been  taken  there  by  his  brother  George,  and  by  one 
Henry  Myers,  who  is  now  dead.  On  the  9th  day  of  October,  1819, 
he  left  the  asylum  in  company  with  his  brother  "improved."  It 
dues  Dot  appear  that  heever  entirely  recovered,  and  I  think  it  quite 
evident  that  he  never  did. 

lb-  inherited  about  $7,000  or  $8,000  from  his  father  and  a  sis- 
ter, and  at  the  time  of  his  death  lie  had  over  $23,000  on  deposit  in 
the  savings  banks.  He  was  a  very  close,  penurious  man.  lie 
made  .-harp  bargains,  wore  poor  clothing  which  he  made  himself, 
and  it  is  said  that  he  usually  wore  about  three  suits  of  clothes  at 
..Me  time.  He  boarded  about  among  his  relatives,  paying  twenty 
shillings  a  week  for  his  keeping,  for  which  he  always  took  receipts 
which  he  himself  made  out. 

It  appears  that  his  brothers  and  sisters  joined  with  him  in  deeds 
of  land  which  they  inherited  with  him,  he  receiving  the  agreed 
consideration,  ami  the  money  which  he  inherited  was  paid  directly 
to  him.  It  does  not  appear  to  have  been  claimed  that  he  was  de- 
ranged is  to  his  mere  pecuniary  transactions.  He  was  evidently 
quite  sane,  methodical,  and  sensible  upon  such  matters.  But  I  do 
not  aee  how  such  transactions  reflecl  upon  his  peculiarities  and  de- 
lusions upon  entirely  different  subjects.  His  usual  business  trans- 
action-, afl   BhoWD    upon    the   trial,  were   brief,  simple,  and    all    oi    a 

similar  character;  inquiries  as  to  dep  >»i t  of  money,  deposits  there 

of.  occasionally  changing  the  deposits  and  receipt-  of  inter.-:).  It 
appeal--  that  he  invented  -oine  money  in  a  >a\ings  bank  at  kan>as 
City  which  failed,  an. I  after   his   return  home  Mr.  Stephen,-,  of  the 

National   Savings    Bank,  collected  one  or  more  dividends  for  him 
from  the  receiver  of  the  broken  bank. 
The  peculiarities  and  delusions  of  the  decedent  were  numerous 


SO  TESTAMENTARY   INCAPACITY. 

and  striking.  He  took  borax  "  to  weld  up  his  inwards ";  lie  re- 
fused to  take  food  until  others  had  taken  of  it,  for  fear  it  had  been 
poisoned  and  would  kill  him ;  he  asserted  that  chloroform  angels 
had  saturated  his  bed  clothing  to  kill  him  ;  that  his  relatives  and 
Indians  were  endeavoring  to  shoot  him ;  he  usually  put  a  quan- 
tity of  salt  into  his  tea  to  destroy  the  poison  which  he  claimed  had 
been  put  therein  to  kill  him ;  he  made  ginger  tea,  and  if  bubbles 
arose  in  the  boiling  of  it,  he  threw  it  away,  because  he  said  the 
bubbles  showed  it  was  poisoned  ;  that  he  had  been  accustomed  to 
drink  milk,  and  suddenly  refused  to  nse  any  more,  stating  that 
that  offered  to  him  had  been  poisoned,  and  that  milk  was  an  arti- 
cle which  could  be  easily  poisoned ;  he  said  that  his  relatives  with 
whom  he  was  boarding  intended  killing  him  with  an  axe-helve 
which  was  being  polished,  and  also  with  a  horse  file  ;  though  the 
plates  from  which  he  ate  were  clean,  he  usually  blew  on  them  to 
throw  off  the  poison  which  he  supposed  had  been  placed  thereon 
for  him  to  take ;  he  refused  to  drink  tea  which  he  did  not  see 
poured  out,  though  the  tea  had  been  prepared  by  his  own  sister ; 
he  busied  himself  for  hours,  sometimes  for  half  a  day  at  a  time, 
under  the  floor  of  his  house  sticking  an  old  bayonet  into  the  earth, 
killing  "  devils,"  as  he  said ;  he  claimed  that  a  drain  from  the 
house  had  been  dug  for  a  grave  for  him,  and  that  his  relatives  in- 
tended to  kill  him  and  to  bury  him  in  it ;  for  half  a  day  at  a  time 
he  dug  holes  about  two  feet  deep  in  the  earth  around  the  house, 
pouring  water  therein  to  drown  out  the  devils,  and  when  the  ex- 
istence of  the  devils  was  questioned  by  the  hired  man  of  his  father, 
he  flew  into  a  rage  and  threatened  to  kill  him  ;  he  usually  carried 
a  pistol  for  the  purpose  of  protecting  himself  from  his  enemies ; 
he  frequently  declared  that  his  relatives  were  banded  together  to 
kill  him  and  thus  obtain  his  property,  and  that  this  was  revealed 
to  him  by  the  birds  at  night ;  he  asserted  that  while  in  the  South 
he  built  a  house  without  windows  or  doors,  sliding  a  board  back  to 
get  in  and  then  replacing  it ;  that  he  built  it  thus  so  that  the 
"gang"  could  not  get  in ;  he  said  that  he  invented  the  first  steam- 
boat and  the  first  engine  that  was  ever  built ;  he  would  sit  in  a 
rocking-chair  and  rock  violently,  alternately  laughing  and  crying, 
with  his  hands  spread  over  his  face  "  peeking  "  through  his  fingers ; 
he  said  he  saw  a  man  coming  out  of  the  cellar  of  his  brother  Ami- 
el's  house,  when  he  was  stopping  there,  to  kill  him  for  his  money ; 


INSANE   DELUSIONS   AFFECTING   WILL.  81 

and  that  his  brother's  wife  was  the  worst  of  them  ;  he  frequently 
cleaned  out  the  wash-dish  after  it  had  been  cleansed,  claiming  that 
it  had  been  poisoned.  Tbere  were  numerous  other  acts  and  things 
of  a  similar  character,  but  those  hereinbefore  enumerated  are  suffi- 
cient to  show  decedent's  condition  of  mind. 

Though  displaying  the  usual  intelligence  of  people  of  his  condi- 
tion in  life  relative  to  business  transactions,  I  am  satisfied  that  at 
the  time  of  going  through  the  formalities  of  executing  this  will, 
and  for  many  years  previous,  decedent  was  laboring  under  the  in- 
sane delusion  that  his  relatives  and  next  of  kin,  who  would  inherit 
his  property  if  he  died  intestate,  were  his  enemies  and  were  com- 
bined to  kill  him  in  order  to  obtain  his  property. 

I  am  persuaded  that  the  alleged  will  must  be  rejected,  in  that  it 
is  unnatural  and  unreasonable  and  strange  upon  its  face.  The  pro- 
vision for  preventing  the  bribing  of  the  executor  (a  gentleman  of 
the  very  highest  character),  the  disinheriting  of  every  relative,  and 
the  giving  of  his  estate  to  charities,  with  one  of  which  he  is  not 
shown  to  have  any  knowledge,  might  not  per  se  be  sufficient  to 
justify  me  in  declaring  the  will  invalid,  but  coupled  with  his  delu- 
sions and  his  condition  of  mind,  require  such  a  determination. 

Though  the  subscribing  witnesses  give  their  opinion  that  he  was 
of  sound  mind  when  he  executed  the  will,  the  transaction  of  execu- 
tion was  very  brief.  They  knew  him  but  slightly,  and  their  testi- 
mony must  be  weighed  in  connection  with  the  light  thrown  upon 
his  mental  condition  and  delusion  by  all  the  evidence  in  the  case. 

If  a  will  be  made  and  executed  under  such  a  delusion  which  op- 
erated upon  the  decedent,  and  induced  him  to  make  it,  it  cannol 
lie  upheld,  though  the  testator's  general  capacity  be  unimpeached. 
Schouler  on  Wills,  sees,  1  .">'.»,  Mil;  Morse  v.  Scott,  4  Dem.  507 ; 
Matter  of  Dorman's  Will,  5  Id.  1  I:'. 

It  it   he  evident  that  the  dispository  provisions  in  the  will  were 

the    result    of  and  were  caused    by  such  a  delusion,  the  instrument 

cannot  be  supported  as  such.  Matter  of  McHugh's  Will,  17  N. 
V.  Week.  Dig,  502;  Seamen's  Friend  Society  v.  Eopper,  33  N. 
5T.624  5;  Olapp  v.  Fullerton,  34  Id.  L90;  Keeler's  Will,  L2  N. 
Y.  State  Rep.  155  7;  Weil's  Will,  L6  Id.  I. 

The  rule  is  so  well  settled  that  it  would  hardly  be  proper  or  al- 
lowable to  extract  from  these  ca  jes  :it  l«  Dgth  to  prove  it.    If  is  true 
that  the  ca  eof   Peeler's  Will  was  reversed,  -J"  N.  Y.  State  Rep. 
r, 


82  TESTAMENTARY   INCAPACITY. 

439,  but  it  was  on  the  ground  that  the  testator's  belief  in  Spiritual- 
ism was  not  sufficient  to  invalidate  the  will,  that  his  declarations  of 
hostility  to  his  relatives  were  merely  declarations  of  aversion  and 
dislike,  and  that  in  bequeathing  all  his  property  to  his  wife,  he  was 
doing  a  just  act  as  against  those  who  had  no  just  claim  upon  his 
bounty.  The  court,  however  (page  443),  recognizes  the  correct- 
ness of  the  rule  that  if  the  testator  was  in  fact  influenced  in  mak- 
ing his  will  by  an  insane  delusion  as  to  his  relatives,  the  will  would 
have  been  invalid. 

This  case  is  quite  unlike  that  of  Vedder's  Will,  6  Dem.  92,  de- 
cided by  me  in  1888.     In  that  case  I  held  that : 

"  There  is  no  evidence  whatever  that  any  or  all  of  these  beliefs, 
delusions,  eccentricities,  or  peculiarities  had  the  slightest  connec- 
tion with  or  influence  upon  the  testamentary  act  here  in  question,1' 
and  further  "  that  mental  capacity  is  to  be  measured  by  its  relations 
to  the  testamentary  act ";  and  "  that  a  person  having  any  insane 
delusion  relating  to  the  property,  persons  concerned,  or  the  provi- 
sions of  the  will,  is  incapable,  while  delusions  which  in  no  way  re- 
late to  these  do  not,  as  a  matter  of  law,  incapacitate." 

It  will  thus  be  seen  that  I  was  careful  in  that  case  to  lay  down 
precisely  the  rule  which  I  have  applied  in  this. 

The  probate  of  the  alleged  will  must  be  refused. 

MENTAL    CONDITION.— TESTATOR'S    DECLARATIONS    BEFORE 

AND  AFTER  EXECUTION.' 

Waterman  and  others  against  Whitney  and  others. 

New  York  Court  of  Appeals,  1854. 
(11  N.  Y.  157.) 

Application  for  probate  of  will  of  Joshua  Whitney.     Appeal. 

Selden,  J. — The  principal  question  presented  by  the  bill  of  ex- 
ceptions in  this  case  is,  as  to  the  admissibility  of  the  declarations  of 
the  testator  made  after  the  execution  of  the  will. 

The  subject  to  which  this  question  belongs  is  of  very  considera- 
ble interest,  and  one  upon  which  the  decisions  are  to  some  extent 
in  conflict.     Much  of  the  difficulty,  however,  has  arisen  from  the 

1  See  also  the  cases  on  declarations  of  testator  on  issue  of  undue  influence, 
post. 


MENTAL    CONDITION. — DECLARATIONS.  83 

omission  to  distinguish  with  sufficient  clearness  between  the  differ- 
ent  objects  for  which  the  declarations  of  testators  may  be  offered  in 
evidence  in  cases  involving  the  validity  of  their  wills.  It  will  tend 
to  elucidate  the  subject  to  consider  it  under  the  following  classifica- 
tion of  the  purposes  for  which  the  evidence  may  be  offered,  viz. : 

1.  To  show  a  revocation  of  a  will  admitted  to  have  been  once  valid. 

2.  To  impeach  the  validity  of  a  will  for  duress,  or  on  account  of 
some  fraud  or  imposition  practised  upon  the  testator,  or  for  some 
other  cause  not  involving  his  mental  condition.  3.  To  show  the 
mental  incapacity  of  the  testator,  or  that  the  will  was  procured  by 
undue  influence.  The  rules  by  which  the  admissibility  of  the  evi- 
dence is  governed,  naturally  arrange  themselves  in  accordance  with 
tin's  classification.  They  have,  however,  been  considered  in  most 
of  the  cases  without  regard  to  it ;  and  hence  much  of  the  appareut 
conflict  among  them  will  disappear  when  the  proper  distinctions 
are  taken. 

To  show  the  state  of  the  authorities,  therefore,  and  what  the 
differences  really  are  between  them,  it  is  necessary  to  arrange  the 
cases  according  to  this  arrangement  of  the  objects  for  which  the 
evidence  is  given.  In  referring,  however,  to  those  belonging  to  the 
first  i'f  these  divisions,  it  is  proper  to  premise  that  the  revocation 
of  a  valid  will,  is  a  matter  which  not  only  in  England,  but  in  this 
State,  and  in  most  if  not  all  the  other  States,  is  regulated  by  stat- 
ute :  and  these  statutes  are  substantially  the  same ;  those  in  this 
country  being  f<>r  the  most  part  taken  from  the  English  statute  of 
frauds.  Most  if  not  all  these  statutes  require  either  a  written  rev- 
ocation executed  with  the  same  formalities  as  the  will  itself,  or 
.-"tue  act  amounting  to  a  virtual  destruction  of  the  will,  such  as 
burning,  tearing,  obliterating,  etc.,  accompanied  by  an  unequivocal 
intention  t<>  revoke  it.  Mere  words  will,  in  no  case,  amount  to  a 
revocation. 

Under  these  statute-,  therefore,  the  only  possible  purpose  for 
which  evidence  of  the  declarations  of  the  testator  can  be  given  upon 
a  question  of  revocation,  is  to  establish  the  animo  revoca/ndi  j  in 

other  words,  to  .-how  the  intent  with  which  the  act  relied  upon  as 

a  revocation  was  done.  The  cases  on  this  subjed  are,  in  the  main, 
in  harmony  with  each  other,  ami  in  general  entirely  accord  with 
the  new  here  presented.  I  will  relVr  to  a  few  of  the  mosl  prom- 
inent    Bibb  v.  Thomas  (2  W.  Black.  L044)  was  a  case  of  revocar 


84  TESTAMENTARY   INCAPACITY. 

tion  by  throwing  the  will  on  the  fire.  The  will  was  not  consumed, 
but  fell  off  the  fire,  and  was  taken  up  and  saved  by  a  bystander 
without  the  knowledge  of  the  testator.  The  court  held  the  revoca- 
tion complete.  The  case  was  held  to  depend  upon  the  intent  with 
which  the  will  was  thrown  upon  the  fire ;  and  to  establish  this  in- 
tent the  declarations  of  the  testator,  both  at  the  time  of  the  trans- 
action and  afterwards,  were  received.  So  far  as  regards  the  decla- 
rations which  accompanied  the  act,  this  was  in  accordance  with 
general  principles,  and  with  all  the  other  cases ;  but  I  apprehend 
that  the  declarations  of  the  testator  made  after  the  transaction  was 
over,  could  not,  in  such  a  case,  be  properly  received.  This  distinc- 
tion, however,  was  not  taken,  and  the  question  did  not  arise.  Doe 
v.  Perkes  and  others  (3  Barn.  &  Aid.  489)  was  a  similar  case,  in 
which  the  declarations  of  the  testator  showed  that  he  had  abandoned 
the  intention  to  destroy  the  will  before  the  work  of  destruction  was 
complete.  No  declarations  were  proved  in  this  case  except  those 
which  were  clearly  a  part  of  the  res  gestae.  In  the  case  of  Dan  v. 
Brown  (4  Cowen  483)  it  was  insisted  by  the  counsel  that  upon  a 
question  of  revocation  the  declarations  of  the  testator,  made  either 
before  or  after  the  act  relied  upon,  were  admissible,  as  well  as  those 
which  accompanied  the  act  itself ;  but  the  court  held  that  declara- 
tions accompanying  the  act,  such  as  were  part  of  the  res  gestae,  were 
admissible  for  the  purpose  of  showing  the  quo  animo  /  but  that  no 
others  could  be  received.  In  Jackson  v.  Betts  (6  Cowen  377)  the 
main  question  was,  whether  a  will  proved  to  have  been  once  prop- 
erly executed,  but  which  could  not  be  found  after  the  death  of  the 
testator,  had  been  canceled  or  destroyed  and  thus  revoked,  or 
whether  it  continued  in  force ;  and  evidence  was  offered  of  the 
declarations  of  the  testator  during  his  last  sickness,  as  to  the  exist- 
ence of  his  will,  and  the  place  where  it  would  be  found.  The 
Supreme  Court  held  the  evidence  not  admissible.  The  case  ulti- 
mately went  to  the  Court  of  Errors,  and  the  Chancellor  there  ex- 
pressed doubts  as  to  the  correctness  of  the  decision  of  the  Supreme 
Court  upon  the  point,  but  did  not  overrule  it.  (See  6  Wend.  173.) 
I  consider  these  cases  as  establishing  the  doctrine  that  upon  a 
question  of  revocation  no  declarations  of  the  testator  are  admissible 
except  such  as  accompany  the  act  by  which  the  will  is  revoked ; 
such  declarations  being  received  as  a  part  of  the  res  gestae,  and  for 
the  purpose  of  showing  the  intent  of  the  act. 


MENTAL   CONDITION—  DECLARATIONS.  85 

The  only  direct  decision-  to  the  contrary  which  has  fallen  under 
my  observation  is  the  case  of  Durant  v.  Ashmon  (2  Rich.  S.  Car. 
R.  184:).  This  case,  however,  is  in  conflict  with  authority  as  well 
as  with  principle.  The  fact  to  be  proved  in  such  cases  is  the  act 
claimed  as  a  revocation,  together  with  the  intent  with  which  it  was 
done ;  and  all  declarations  of  the  testator  which  do  not  accompany 
the  act  are  to  be  regarded  as  mere  hearsay,  and  should  be  treated 
as  such. 

In  regard  to  the  second  class  of  cases,  viz,,  where  the  validity  of 
a  will  is  disputed  on  the  ground  of  fraud,  duress,  mistake,  or  some 
similar  cause,  aside  from  the  mental  weakness  of  the  testator,  I 
think  it  equally  clear  that  no  declarations  of  the  testator  himself 
can  be  received  in  evidence  except  such  as  were  made  at  the  time 
of  the  execution  of  the  will,  and  are  strictly  a  part  of  the  res  gestae. 
Jackson  v.  Kniffen  (2  John.  31)  is  a  leading  case  on  this  subject. 
In  that  case  the  plaintiff  claimed  as  heir  at  law  ;  the  defendant  under 
the  will  of  David  Kniffen.  The  plaintiff  gave  evidence  tending 
strongly  to  show  that  the  will  was  obtained  by  duress,  and  offered 
to  follow  this  up  by  proof  of  the  testator's  declarations,  some  of 
them  made  in  extremis,  that  the  will  had  been  extorted  from  him 
by  threats  and  duress.  The  court  held  the  evidence  inadmissible. 
Thompson,  J.r says:  "This  will  might  have  been  executed  under 
circumstances  which  ought  to  invalidate  it,  but  to  allow  it  to  be  im- 
peached by  the  parol  declarations  of  the  testator  himself,  would,  in 
my  judgment,  bo  eluding  the  statute,  and  an  infringement  upon 
well  settled  and  established  principles  of  law."  In  Smith  v.  Ken- 
ner  1 1  Gallison  L70),  one  of  the  questions  was,  whether  the  will  of 
Arthur  Fenner  had  been  obtained  by  fraud  and  imposition,  and  the 
plaintiffs  offered  to  prove  declarations  of  the  testator  to  that  effect, 

made  before  and  at  the  time  of   making  the  will  and  immedi<it<  hj 

afterwards.     He  also  offered   to  prove  similar  declarations  made 

afterward-  at  dillerent  times  during  the  last  years  of  his  life.  The 
court   held  that   the  deelarat  ions  made  before  as  well  a-  a!  or  SO  near 

the  time  as  to  be  a  part  of  the  res  gestcu  were  admissible,  bul  not 
those  made  afterwards.  So  far  as  this  case  seems  to  justify  the  re- 
ception of  declarations  made  before  the  execution  of  the  will  to 
prove  fraud  or  duress,  1  think  it  inconsistent  with  principle,  as  well 

opposed  to  the  best  considered  -if  the  modern  cases.  In  other 
respectE  it    U   in  accordance  with  both.      In  the  case  of  Stevens  v. 


$6  TESTAMENTARY   INCAPACITY. 

Yancleve  (4  Wash.  C.  C.  P.  262),  it  was  made  a  question  whether 
a  will  had  been  duly  executed  ;  and  as  bearing  upon  that  question, 
the  defendant's  counsel  offered  to  prove  that  the  uniform  declara- 
tions of  the  testator  in  favor  of  the  defendant,  who  was  the  devisee, 
had  been  consistent  with  the  disposition  of  the  will  in  1817.  The 
evidence  was  rejected.  Washington,  J.,  said  :  "  The  declarations 
of  a  party  to  a  deed  or  will,  whether  prior  or  subsequent  to  its  exe- 
cution, are  nothing  more  than  hearsay  evidence,  and  nothing  could 
be  more  dangerous  than  the  admission  of  it,  either  to  control  the 
construction  of  the  instrument,  or  to  support  or  destroy  its  validity/' 
In  Moritz  v.  Brough  (16  Serg.  &  Rawle  403)  the  Supreme  Court 
of  Pennsylvania  held  the  declarations  of  the  testator,  whether  made 
before  or  after  the  execution  of  the  will,  inadmissible  for  the  pur- 
pose of  proving  fraud  or  coercion,  although  it  is  there  conceded 
that  for  the  purpose  of  showing  the  mental  imbecility  of  the  testator 
such  evidence  might  be  received.  It  was  also  unanimously  decided 
by  the  Court  of  Errors  of  Connecticut,  in  the  case  of  Comstock  v. 
Hadlyme  (8  Conn.  254),  that  the  declarations  of  the  testator,  unless 
a  part  of  the  res  gestae,  Were  not  admissible  for  any  purpose  except 
to  prove  his  mental  condition  at  the  time  of  executing  the  will. 
The  same  doctrine  is  held  by  the  English  courts.  In  Provis  v. 
Peed  (5  Bing.  435)  it  was  sought  to  impeach  the  validity  of  the 
will  by  proving  the  declarations  of  the  testator  made  after  its  exe- 
cution. The  evidence  was  rejected.  Best,  Ch.  J.,  said  :  "It  has 
been  insisted  that  declarations  of  the  testator  were  admissible  in 
evidence  to  show  that  the  will  he  had  executed  was  not  valid ;  but 
no  case  has  been  cited  in  support  of  such  a  position,  and  we  shall 
not,  for  the  first  time,  establish  a  doctrine  which  would  render  use- 
less the  precaution  of  making  a  will." 

These  cases  must,  I  think,  be  sufficient  to  establish  the  position 
that  declarations  of  a  testator,  made  either  before  or  after  the  exe- 
cution of  the  will,  are  not  competent  evidence  to  impeach  its 
validity  on  the  ground  of  fraud,  duress,  imposition,  or  other  like 
cause.  In  one  of  Cowen  &  Hill's  Notes  to  Phillipps  on  Evidence 
(see  note  481,  p.  257),  it  seems  to  be  insisted  that  the  declarations 
of  a  devisor  are  admissible  against  the  devisee  upon  the  same 
principle  with  those  of  an  ancestor  against  the  heir,  or  of  a  grantor 
against  his  grantee.  Perhaps  they  may  be,  where  the  declaration 
is  in  regard  to  the  estate  ;  but  where  it  has  reference  to  the  validity 


MENTAL   CONDITION. — DECLARATIONS.  87 

of  the  will,  the  case  is  entirely  different.  Declarations  of  an  an- 
cestor, grantor,  etc.,  are  admitted,  because  they  are  against  the 
interest  of  the  party  making  them,  and  might,  when  made,  have 
been  used  against  him.  But  these  reasons  do  not  apply  at  all  to  the 
declarations  of  a  testator  in  regard  to  his  will.  He  has  no  interest 
in  the  matter,  and  the  declarations  could  never,  under  any  circum- 
stances, be  used  against  him  personally.  The  distinction  is  obvious 
and  material.  There  are  one  or  two  cases  in  the  reports  of  the 
State  of  North  Carolina  which  might  seem  to  hold  a  contrary  doc 
trine  to  that  here  advanced,  viz. :  Reel  v.  Reel  (1  Hawks  248),  and 
Howell  v.  Barden  (3  Dev.  462).  But  the  decision  in  the  first  of 
these  cases  is  entirely  reconcilable  with  the  view  here  taken, 
although  all  that  is  said  by  the  court  may  not  be. 

I  have  referred  thus  particularly  to  these  numerous  cases,  in 
which  the  declarations  of  testators  have  been  held  inadmissible 
upon  contests  respecting  the  validity  of  their  wills,  for  the  pur- 
pose of  showing  that  they  all  apply  to  one  or  the  other  of  the  first 
two  of  the  three  classes  into  which  I  have  divided  the  cases  on  the 
subject.  None  of  them  have  any  application  to. cases  in  which  the 
will  is  assailed  on  account  of  the  insanity,  or  mental  incapacity  of 
the  testator  at  the  time  the  will  was  executed,  or  on  the  ground 
that  the  will  was  obtained  by  undue  influence. 

The  difference  is  certainly  very  obvious  between  receiving  the 
declarations  of  a  testator,  to  prove  a  distinct  external  fact,  such  as 
duress  or  fraud  for  instance,  and  as  evidence  merely  of  the  mental 
condition  of  the  testator.  In  the  former  case  it  is  mere  hearsay, 
and  liable  to  all  the  objections  to  which  the  mere  declarations  of 
third  perSOIlE  are  BUbject;   while  in  the  latter  it  is  the   most   direct 

and  appropriate  species  of  evidence.  Questions  of  mental  compe- 
tency and  of  undue  influence  belong  in  this  respect  to  the  same 
class:  because,  as  is  said  by  Jarman,  in  his  work  on  wills,  "The 
amount  of  undue  influence  which  will  be  sufficient  to  invalidate  a 
will,  must  of  course  vary  with  the  strength  or  weakness  of  the 
mind  of  the  testator."  (1  Jarman  on  Wills,  36.)  So  the  mental 
strength  and  condition  of  the  testator  is  directly  in  issue  in  every 
e  of  alleged  undue  influence ;  and  the  same  evidence  is  admis- 
sible m  every  Buch  ease,  a  in  cases  where  insanity  or  absolute  in- 
competency is  alleged,  [t  is  abundantly  settled  thai  upon  either 
of  these  questions,  the  declarations  of  the  testator,  made  at  or  l>< 


88  TESTAMENTARY   INCAPACITY. 

fore  the  time  of  the  execution  of  the  will,  are  competent  evidence. 
The  only  doubt  which  exists  on  the  subject  is,  whether  declara- 
tions made  subsequent  thereto  may  also  be  received. 

Clear  and  accurate  writers  have  been  led  into  confusion  on  this 
subject,  by  not  attending  to  the  distinctions  growing  out  of  the 
different  purposes  for  which  the  evidence  may  be  offered.  Mr. 
Greenleaf,  in  his  work  on  evidence,  in  treating  of  the  invalidity  of 
wills,  in  consequence  of  the  insanity,  or  mental  imbecility  of  the 
testator,  says :  "  In  the  proof  of  insanity,  though  the  evidence 
must  relate  to  the  time  of  the  act  in  question,  yet  evidence  of  in- 
sanity immediately  before  or  after  the  time  is  admissible.  Suicide 
committed  by  the  testator  soon  after  making  his  will,  is  admissible 
as  evidence  of  insanity,  but  it  is  not  conclusive."  And  in  the  same 
section  he  adds  :  "  The  declarations  of  the  testator  himself  are  ad- 
missible only  when  they  were  made  so  near  the  time  of  the  execu- 
tion of  the  will  as  to  become  a  part  of  the  res  gestae"  and  he  refers 
for  the  last  proposition  to  Smith  v.  Fenner,  supra.  (See  2  Greenl. 
Ev.,  sec.  690.)  Nothing  could  be  more  incongruous  than  the  dif- 
ferent branches  of  this  section.  To  say  that  the  insanity  of  the 
testator,  subsequent  to  the  making  of  the  will,  may  be  proved,  but 
that  the  declarations  of  the  testator  are  inadmissible  for  the  purpose 
of  proving  it,  is  not  a  little  extraordinary.  It  admits  the  fact, 
but  excludes  the  most  common  and  appropriate  evidence  to  es- 
tablish it. 

This  incongruity,  and  the  citation  of  the  case  of  Smith  v.  Fen- 
ner, where  the  declarations  were  offered  not  to  prove  insanity  or 
mental  imbecility,  but  fraud  and  circumvention,  shows  that  the 
attention  of  the  learned  author  was  not  directed  to  the  distinction 
I  have  alluded  to.  The  first  position  advanced  by  Mr.  Greenleaf 
in  this  passage,  viz. :  that  the  insanity  or  incapacity  of  the  testator 
after  the  execution  of  the  will  may  be  proved,  not  as  important  in 
itself,  but  as  a  means  of  arriving  at  his  condition  when  the  will 
was  executed,  seems  to  be  sustained  by  authority.  (Dickinson  v. 
Barber,  9  Mass.  225  ;  Grant  v.  Thompson,  4  Conn.  R.  203  ;  Irish 
v.  Smith,  8  Serg.  and  Rawle  573.)  But  the  latter,  that  this  can- 
not be  established  by  the  conversation  or  declarations  of  the  tes- 
tator himself,  is  in  conflict  with  numerous  cases.  In  Stevens  v. 
Yancleve  (4  Wash.  C.  C.  It.  202),  the  question  arose,  and  Wash- 
ington, J.,  said  :  "  The  only  point  of  time  to  be  looked  at  by  the 


MENTAL   CONDITION. — DECLARATIONS.  89 

jury,  at  which  the  capacity  of  the  testator  is  to  be  tested,  is  that, 
when  the  will  was  executed.  He  may  have  been  incapable  to  make 
a  will  at  any  time  before  or  after  that  period,  and  the  law  permits 
evidence  of  such  prior  and  subsequent  incapacity  to  be  given.  But 
unless  it  hear  upon  that  period,  and  is  of  such  a  nature  as  to  show 
incompetency  when  the  will  was  executed,  it  amounts  to  nothing." 
In  Rambler  v.  Tryon  (7  Serg.  &  Rawle  90),  upon  a  question  of 
mental  imbecility,  the  plaintiff  was  permitted  to  prove  that  the 
testator,  in  the  absence  of  his  wife,  to  whom  he  had  devised  his 
property,  "  told  the  witness  that  his  father-in-law  and  wife  plagued 
him  to  go  to  Lebanon  :  that  they  wanted  him  to  give  her  all,  or  he 
would  have  no  rest,  and  that  he  did  not  wish  to  go  to  Lebanon." 
The  court  held  this  proof  admissible  as  evidence  of  weakness  of 
mind,  operated  upon  by  excessive  and  undue  importunity.  It 
does  not  distinctly  appear  from  the  report  of  this  case,  whether 
the  declaration  was  prior  or  subsequent  to  the  making  of  the  will ; 
but  in  the  subsequent  case  of  McTaggart  v.  Thompson  (14  Pennsyl. 
R.  149),  it  is  distinctly  asserted  by  the  court  that  the  declaration 
was  after  the  execution  of  the  will.  Rogers,  J.,  says:  "It  is  ex- 
pressly ruled  in  Rambler  v.  Tryon  (7  Serg.  &  Rawle  90),  that 
the  declarations  of  the  testator,  although  after  the  execution  of  the 
will,  are  evidence  of  imbecility  of  mind." 

The  offer  in  the  case  of  McTaggart  v.  Thompson  was,  to  prove 
declarations  of  the  testator  after  the  execution  of  the  will  as  to  the 
disposition  of  his  property,  "that  he  had  ruined  his  family,  and 
that  he  had  been  deceived  and  imposed  upon  by  persons  who  pro- 
cured him  t<>  make  his  will."  The  court  held  the  evidence  inad- 
missible.    The  ease  of  Reel  v.  Reel  (1   Hawks  247)  is  a  leading 

e  on  this  snbject,  and  one  which  has  been   supposed  to  conflict, 
and  was   supposed   by  the  court  which   decided    it   to  cotillict  with 

several  of  the  cases  I  have  cited,  especially  Jackson  v.  Kniffen  (2 
John.  31)  and  Smith  v.  Fenner  (1  Gallis.  L70);  but  which,  when 
viewed  in  the  light  of  the  arrangement  of  the  cases  which  is  here 
adopted,  will  be  seen  to  lie  in  entire  harmony  with  them.    The 

oiler  iii    Keel   v.   Keel  was  to  prove  repeated  declarations  of  the  teS- 

tator,  made  after  the  execution  of  the  will,  in  which  he  stated  its 

contents  to  be  materially  and  utterly  different  from  what  they 
were.  These  declarations  were  offered  in  connection  with  con- 
flicting testimony  upon  the  point  of  testamentary  capacity.     The 


90  TESTAMENTARY   INCAPACITY. 

evidence  here  offered  bore  exclusively  upon  the  question  of  the 
competency  of  the  testator  :  and  of  course  did  not  fall  within  the 
principle  of  those  cases,  which  exclude  declarations  bearing  upon 
questions  of  fraud,  duress,  etc.,  unless  a  part  of  the  res  gestae. 
Hence  there  was  no  necessity,  as  the  court  seemed  to  suppose,  for 
overruling  the  cases  of  Jackson  v.  Kniffen  and  Smith  v.  Fenner, 
in  order  to  admit  the  evidence  offered  in  this  case.  The  decision 
of  the  court  in  holding  the  evidence  admissible,  is  not  in  conflict, 
so  far  as  I  have  been  able  to  discover,  with  any  adjudged  case, 
either  in  this  country  or  in  England,  and  on  the  other  hand  is  in 
entire  harmony  with  what  seems  to  be  the  established  doctrine, 
that  the  insanity  or  imbecility  of  the  testator  subsequent  to  making 
the  will  may  be  proved,  in  connection  with  other  evidence,  with  a 
view  to  its  reflex  influence  upon  the  question  of  his  condition  at 
the  time  of  executing  the  will.  Indeed,  if  the  latter  doctrine  is 
sound  it  necessarily  follows  that  the  decision  is  right. 

This  conclusion  is  of  course  decisive  of  the  present  case,  which 
is  identical  in  principle  with  that  of  Reel  v.  Reel.  Here,  as  in 
that  case,  the  offer  was  to  prove  declarations  of  the  testator,  stating 
the  contents  of  the  will  to  be  entirely  different  from  what  they 
were  in  fact :  and  these  declarations  were  offered  in  connection 
with  other  evidence  bearing  upon  the  competency  of  the  testator 
at  and  before  the  execution  of  the  will.  If  evidence  of  the  mental 
condition  of  the  testator  after  the  execution  of  the  will  is  admis- 
sible in  any  case,  as  to  his  capacity  when  the  will  was  executed, 
and  the  competency  of  such  proof  seems  to  be  sustained  by  many  ' 
authorities  and  contradicted  by  none  ;  then  it  is  clear  that  the  tes- 
timony offered  here  should  have  been  admitted. 

It  does  not  follow  from  this  that  evidence  of  this  nature  is 
necessarily  to  be  received,  however  remote  it  may  be  in  point  of 
time  from  the  execution  of  the  will.  The  object  of  the  evidence 
is  to  show  the  mental  state  of  the  testator  at  the  time  when  the 
will  was  executed.  Of  course,  therefore,  it  is  admissible  only 
where  it  has  a  legitimate  bearing  upon  that  question  :  and  of  this 
the  court  must  judge,  as  in  every  other  case,  where  the  relevancy 
of  testimony  is  denied.  If  the  Judge  can  see  that  the  evidence 
offered  cannot  justly  be  supposed  to  reflect  any  light  upon  the 
mental  condition  of  the  testator,  at  the  time  of  making  the  will,  he 
has  an  undoubted  right  to  exclude  it.     In  the  present  case  it  was 


TESTIMONY   CONCERNING   SANITY.  91 

impossible  for  the  Judge  to  say  this  in  advance  of  any  information 
as  to  the  precise  period  when,  and  the  circumstances  under  which 
the  declarations  proposed  to  be  proved  were  made. 

There  is  no  conflict  between  the  doctrine  here  advanced  in  re- 
gard to  the  admissibility  of  the  species  of  evidence  in  question  and 
the  rule  before  adverted  to,  which  excludes  it  when  the  issue  is  as 
to  the  revocation  of  a  will.  The  difference  between  the  two  cases 
consists  in  the  different  nature  of  the  inquiries  involved.  One 
relates  to  a  voluntary  and  conscious  act  of  the  mind  ;  the  other  to 
its  involuntary  state  or  condition.  To  receive  evidence  of  subse- 
quent declarations  in  the 'former  case  would  be  attended  with  all 
the  dangers  which  could  grow  out  of  changes  of  purpose,  or  of  ex- 
ternal motives  operating  upon  an  intelligent  mind.  No  such 
dangers  would  attend  the  evidence  upon  inquiries  in  relation  to 
the  sanity  or  capacity  of  the  testator. 

It  is  unnecessary  to  notice  the  other  points  in  the  case.  It  may, 
however,  be  proper  to  say  that  the  testimony  offered  and  rejected, 
in  regard  to  the.two  thousand  acres  of  land  in  Florida,  was  wholly 
immaterial,  as  it  would  not,  if  given,  have  been  in  the  least  incon- 
sistent with  the  will,  which  in  terms  admitted  that  the  land  had 
formerly  belonged  to  "William. 

The  judgment  of  the  Supreme  Court  must  be  reversed,  and 
there  must  be  a  new  trial  of  the  issues. 

Denio,  Johnson,  Parker,  Allen,  and  Edwards,  JJ.,  con- 
curred. 

Gardiner,  C.  J.,  dissented. 

Judgment  of  the  Supreme  Court  reversed  and  new  trial  ordered. 

TE8TIMONY   CONCERNING    SANITY. 

In  considering  the  Bubjecl  of  evidence  concerning  the  sanity  of 
the  testator,  it  must  be  noticed  thai  the  topic  Is  one  on  which  dif- 
ferenl  courts  would  !»»•  likely  to  lay  down  different  rules  concern- 
ing the  competency  of  the  witnesses  and  the  proper  scope  of  their 
testimony.  Such  variance  does,  in  fact,  exist  in  some  points.  We 
will  here  point  oul  the  generally  accepted  and  leading  rules,  and  call 
attention  to  the  marked  exceptions.  In  doing  so  it  will  be  con- 
venient to  classify  witnesses  in  three  groups,  namely  :  first,  the  sub- 
scribing witm    i    :  second,  experts;  and  third,  other  witnesses. 

1.   So   far  Bfl   subscribing  witnesses  go,  then,  il    Is   customary  to 


92  TESTAMENTARY   INCAPACITY. 

allow  them  a  good  deal  of  leeway.  One  of  the  very  purposes  of 
requiring  witnesses  at  all  is  to  provide  for  testimony  from  compe- 
tent persons  on  the  question,  among  others,  of  the  testator's  gen- 
eral capacity  to  make  a  will.  Their  position,  too,  in  having  been 
present  at  the  execution,  and  having  their  attention  called,  with 
more  or  less  directness,  to  the  fact  that  testator  was  doing  some 
act  calling  for  the  exercise  of  some  degree  of  judgment,  and  in 
having  themselves  subscribed  their  names  on  the  same  paper 
signed  by  him,  is  such  as  to  render  their  testimony  of  unusual  im- 
portance.1 They  may  therefore  testify  whether,  in  their  opinion, 
testator  was,  at  the  time  of  executing  the  will,  sane  or  insane.'  If 
required,  they  must,  however,  state  the  facts  on  which  that  opin- 
ion is  based.3     And  their  testimony  is  not  conclusive.4 

2.  Much  scope  is  also  allowed  in  the  testimony  of  a  competent 
expert,  made  familiar  by  experience  and  training  with  the  field  to 
which  his  testimony  relates.  On  the  basis  of  the  facts  testified  to 
by  other  witnesses,  or  of  facts  observed  by  himself  in  the  particu- 
lar instance,  he  may  state  his  opinion  of  the  sanity  of  the  testa- 
tor,6 and  should  state  the  particular  facts  and  grounds  on  which  he 
bases  it.6 

3.  Other  witnesses,  non-professional  and  non-subscribing,  are  in 
general  allowed  to  give  their  opinion,  derived  from  personal  ob- 
servation, of  testator's  sanity.7  But  they  must  state  the  facts  ob- 
served by  them,  on  which  they  base  the  opinions  given/  and  their 
opportunities  for  observation  will  greatly  affect  the  weight  of  their 
testimony.9 

In  some  States,  however,  these  non-expert,  non-attesting  wit- 

1  Hastings  v.  Rider,  99  Mass.  622. 

2  Clapp  v.  Fullerton,  34  N.  Y.  190  ;  Robinson  v.  Adams,  62  Me.  369  (409). 

3  Robinson  v.  Adams,  62  Me.  369  (409).  4  Scbouler  on  Wills,  §  178. 
6  Heald  v.  Thing,  45  Me.  392  ;  Kempsey  v.  McGinness,  21  Mich.  123. 

6  Kempsey  v.  McGinniss,  21  Mich.  123  ;  Gibson  v.  Gibson,  9  Yerg.  329 ; 
Keith  v.  Lothrop,  10  Cush.  453  ;  Heald  v.  Thing,  45  Me.  392  ;  Clark  v.  State, 
12  Ohio  483. 

1  Beaubien  v.  Cicotte,  12  Mich.  459  (501);  Weems  v.  Weems,  19  Md.  334; 
Stubbs  v.  Houston,  33  Ala.  555;  Cram  v.  Cram,  33  Vt.  15;  Hardy  v.  Merrill, 
56  N.  H.  227;  In  re  Will  of  Norman  (la.),  33  N.  W.  Rep.  374. 

8  Appleby  v.  Brock,  76  Mo.  314;  Turner  v.  Cheesman,  15  N.  J.  Eq.  243; 
Dunham's  Appeal.  27  Conn.  192;  Staser  v.  Hogan,  120  Ind.  207. 

9  Weems  v.  Weems,  19  Ala.  334. 


TESTIMONY    CONCERNING   SANITY.  93 

nesses  are  allowed  to  testify  merely  to  the  facts  observed  by  them 
bearing  on  the  question  of  testator's  sanity  at  the  time  in  question, 
leaving  the  jury  to  deduce  from  the  facts  so  stated,  aided  by  the 
opinions  of  experts  and  of  the  subscribing  witnesses,  their  own 
opinion  on  the  subject  in  question.1  The  distinction,  however, 
between  facts,  and  opinions  derived  therefrom,  is  often  exceed- 
ingly fine-spun.  Thus  it  was  held,  in  Nash  v.  Hunt,2  that  testi- 
mony that  witness  noticed  "  no  incoherence  of  thought,"  and  noth- 
ing ''unusual  or  singular"  in  testator's  mental  condition,  was  held 
to  relate  to  a  fact  and  not  an  opinion.  And  in  New  York,  non- 
expert, non-subscribing  witnesses  may  testify  to  acts  and  declara- 
tions of  testator  observed  by  them,  and  may  characterize  them  as 
"rational"  or  "irrational,"  and  give  the  impression  produced 
thereby  on  their  own  minds.  But  they  are  not  allowed  to  state 
their  opinion  of  testator's  sanity  or  insanity.3 

In  all  the  foregoing  classes  of  cases,  the  opinions  of  witnesses, 
where  admissible,  are  to  be  tested  by  the  facts  on  which  the  wit- 
ness bases  them,  and  which  are  stated  in  his  testimony,  and  their 
weight  will  depend  both  on  the  nature?  of  the  facts  and  the  oppor- 
tunities enjoyed  by  the  witness  for  forming  a  comprehensive  and 
accurate  opinion.  But,  nevertheless,  the  opinions  themselves,  in 
connection  with  the  facts  and  circumstances,  are  also  entitled  to 
weight  on  their  own  account.  Otherwise,  there  would  be  no  ob- 
ject in  admitting  them. 

Note. 

For  a  general  review  of  the  subject  of  insanity  in  its  relation  to 
testamentary  capacity,  the  following  works  may  be  consulted : 

Ray's  Medical  Jurisprudence  of  Insanity;  2  Taylor's  Principles 
of  Medical  Jurisprudence,  ch.  88  99;  Dr.  Wm.  A.  Hammond's 
••  In.-aiiitv  in  its  Medico-Legal   Relations";  1  Wharton  &  Stille's 


Hastings  v.  Rider,  99  Ma  622.  Such  was  the  decision  in  Boardman  v. 
Woodman,  IT  N.  II.  120,  new  abandoned  In  Bard;  v.  Merrill,  56  N.  B.227. 
!■-,,,•  .,„  exhaustive  review  of  the  decisions  on  both  Bides  of  this  question,    e< 

enting  opinion  of  Doe,  J.,  In  State  v.  Pike,  51  N.  B.  105     Bee  also  Gehrke 

v.  State,  18  Tex.  568. 
''  118  Mass.  287.     AJsoeee  May  v.  Bradlee,  127  Ma  i    U4 
*  RideT  \.  Mllli  r,  88  N.  V.  507;  Clapp  v.  Fuilerton,  84.N.  V.  190. 


94  TESTAMENTARY   INCAPACITY. 

Medical  Jurisprudence,  Bk.  I.,  ch.  2 ;  Bk.  II. ;  Maudsley's  Physi- 
ology and  Pathology  of  the  Mind ;  Buswell  on  Insanity,  Ch.  I. 
and  Ch.  XI. ;  Browne's  Medical  Jurisprudence  of  Insanity ;  El- 
well's  Medical  Jurisprudence,  Chs.  XXIV.-XXXI ;  Esquirol's 
Illusions  of  the  Insane.  And  on  the  testimony  of  Experts,  also 
Ordronaux's  Jurisprudence  of  Insanity. 


CHAPTER  II. 
UNDUE  INFLUENCE.— FRAUD. 

We  have  again  and  again  reiterated  the  principle  that  what  the 
law  seeks  to  find  and  enforce  is  the  real  and  duly  authenticated 
wish  or  will  of  the  testator  himself.  Therefore,  if  it  can  be  shown 
that  the  instrument  propounded  embodies  not  his  will,  but  that  of 
somebody  else,  then,  of  course,  it  cannot  be  enforced.  The  trouble 
with  it  may  be  that  there  was  actual  fraud,  as,  for  example,  in 
reading  one  instrument  to  the  testator  and  then  surreptitiously 
substituting  another  for  him  to  sign  ; '  or  it  may  be  that  the 
testator  was  badgered  or  crowded  or  actually  coerced  into  making 
a  will  not  representing  his  own  personal  wishes.  In  such  cases 
the  instrument  is  not  the  will  of  the  testator,  and  has  no  claim 
whatever  for  consideration  at  the  hands  of  the  law.  But  influence 
over  testator's  mind,  in  order  to  vitiate  the  will,  must  be  "  undue," 
—that  is,  it  must  go  beyond  reasonable  argument,  suggestion, 
request,  advice,  persuasion,  or  the  urging  of  claims  to  special  recog- 
nition." The  true  test  of  "  undue  "  influence  is  that  it  overpowers 
the  will  without  convincing  the  judgment.2 

It  is  obvious  that  undue  influence  is  more  likely  to  be  found,  or 
perhaps  is  only  to  be  found,  where  the  testator  is  feeble,  and  ready 
to  yield  for  the  sake  of  peace,  or  is  somewhat  weak  in  mind  or 
body,  or  in  nunc  way  not  fully  fitted,  or  in  a  position,  to  stand  up 
for  his  own  rights;  and  so  also  in  regard  to  fraud, — it  is  more 
easily  perpetrated  where  testator  is  blind,  or  deaf,  or  otherwise 
disabled.  In  all  such  cases,  therefore,  special  care  is  required  to 
make  sure  that  the  instrument  does  embody  the  testator's  own  will/ 

Doedem.  Small  v.  Allen,  8T.  R.  147 (given post), 

Dale's  Appeal,  67  Conn.  127;  Kerr  v.  Lunaford,  21  W.  Va.  659 ;  Stouten- 
burgh  v.  Hopkins.  48  N.  J.  Bq.  .r,77  :  Barle  v,  Norfolk,  86  N.  .!.  ESq.  92; 
Bastiav.  Montgomery  (Ala.),  9  So.  Rep.  811  ;Tallman'sWill(Penn.),  28  Ail.  R. 
986;  Hen'  Will  (Minn.),  51  X.  W.  Rep.  814, 

Hull  v  Hail.  L.  R,  i  I*.  &  I).  581,  given  post;  Severance  v.  Severance 
(Mich.;,  .Vj  \\  \v.  392  ;  Schmidl  v.  Sriimi.lt  (Minn.),  50  X.  W.  598 

■<;rimtii  v.  Diffenderfler,  50  Md.  466  (481);  Reichenbacn  v.  Knd.lach,  127 
Perm.  St.  564 

(95) 


96  UNDUE   INFLUENCE. 

UNDUE  INFLUENCE.— BURDEN  OF  PROOF. 

As  already  stated,  the  burden  of  making  out  a  charge  of  undue 
influence  rests  on  the  party  setting  it  up.'  If  he  relies  on  it  he 
must  prove  it  by  a  preponderance  of  evidence.2  Mere  suspicions 
will  not  answer.3 

The  question  of  whether  the  contestant  in  any  given  case  has 
offered  sufficient  evidence  of  undue  influence  to  tip  the  balance 
against  the  will,  depends  on  all  the  facts  of  the  particular  case 
itself,  and  few  rules  of  general  application  can  be  laid  down. 
There  are  some  points,  however,  to  which  attention  should  be 
called,  namely : 

1.  In  transactions  inter  vivos,  the  mere  fact  that  the  parties 
stand  in  some  fiduciary  relation  toward  one  another,  as  that  of 
guardian  and  ward,  confessor  and  confessed,  attorney  and  client, 
or  physician  and  patient,  may  be  in  itself  sufficient  to  raise  a  pre- 
sumption of  undue  influence,  and  call  upon  the  confessor,  attorney, 
or  guardian  to  show  the  absence  thereof.4  In  the  case  of  wills, 
however,  proof  of  the  mere  fact  that  the  beneficiary  was  the  trustee, 
confessor,  physician,  attorney,  or  guardian  of  the  testator,  or  occu- 
pied any  fiduciary  relation  toward  him,  though  often  a  suspicious 
circumstance,  does  not  of  itself  raise  a  presumption  of  undue  in- 
fluence.5 

2.  But  if  it  be  shown  that  the  guardian,  or  other  person  occupy- 
ing the  fiduciary  position,  made  active  personal  efforts  to  procure 

1  Tyler  v.  Gardiner,  35  N.  Y.  559. 

2  Seebrock  v.  Fedawa,  46  N.  W.  Rep.  650. 

3  Parfitt  v.  Lawless,  L.  R.  2  P.  &  D.  462. 

4  Nesbit  v.  Lockman,  34  N.  Y.  167.  The  person  propounding  the  alleged 
last  will  of  a  testatrix  was  the  chairman  of  the  board  of  guardians  of  the  union 
in  whose  workhouse  infirmary  the  testatrix  was  an  inmate  at  the  time  the 
alleged  will  was  made,  and  in  which  she  died.  The  plaintiff  obtained  from  a 
solicitor  a  form  of  will,  and  filled  it  up  in  pencil.  He  refused  to  allow  the 
solicitor  to  go  to  the  deceased.  Having  got  the  will,  the  plaintiff  called  in  a 
friend  of  his  own,  and  with  him  went  to  the  infirmary,  and  the  testatrix  put 
her  mark  to  the  will  in  their  presence  and  that  of  a  nurse.  The  jury  found 
that  a  plea  of  undue  influence  was  established.  Parker  v.  Duncan,  62  L.  T. 
(N.  S.)642.  (Such  is  the  statement  of  the  headnote  in  the  report.  The  jury  in 
fact  found  also,  however,  that  testatrix  was  not  of  sound  mind,  and  that  she 
did  not  know  the  contents  of  the  alleged  will.) 

5  Parfitt  v.  Lawless,  L.  R.  2  P.  &  D.  462  ;  Bancroft  v.  Otis,  8  So.  Rep.  286 
giving  a  very  full  discussion  of  the  subject). 


BURDEN   OF   PROOF.  97 

the  will  in  bis  own  favor,  then  it  devolves  on  him  to  prove  that 
nevertheless  the  will  was  the  free  act  of  the  testator.1 

3.  The  mere  fact  that  the  beneficiary  drew  the  will,  even  though 
testator's  attorney,  does  not  necessarily  and  always  raise  a  presump- 
tion of  undue  influence,2  though  the  circumstance  is  more  or  less 
suspicious,  according  to  the  facts  of  the  particular  case.'  And  all 
the  fact-  may,  when  taken  in  conjunction  with  it,  create  so  strong 
a  suspicion  as  to  raise  a  presumption  of  undue  influence.4 

4.  Bequests  to  persons  in  confidential  relations  not  fiduciary  in 
the  ordinary  sense,  as,  for  instance,  that  of  parent  and  child,  master 
and  servant,  etc.,  do  not  in  themselves  raise  any  presumption  of 
undue  influence,  not  even  where  the  beneficiary  did  take  active 
steps  to  procure  the  will.  In  such  cases  further  proof  that  the 
influence  was  undue  must  be  offered.5  But  if  such  a  beneficiary 
bad  the  testator  in  his  power,  and  testator  was  feeble,  or  other 
suspicious  circumstances  are  shown,  then  the  confidential  relation 
may  contribute  to  raise  a  presumption  of  undue  influence,  especially 
where  the  provisions  of  the  will  are  unnatural.8 

5.  Illicit  relatii  his  between  testator  and  beneficiary,  when  coupled 
with  other  circumstances,  indicating  either  actual  constraint; 
impaired  testamentary  capacity;  loss  of  will  power;  habits  of  in- 
temperance; sickness  or  disease  at  the  time  of  making  the  will, 
contribute  to  raise  a  presumption  of  undue  influence.  But  taken 
merely  by  themselves,  they  raise  no  such  presumption.7 


1  Dale'fl  Appeal,  ■>"!  Conn.  127  ;   Parker  v.  Duncan,  02  L.  T.  (N.  S.)  642. 
Posl  v.  Mason,  91    X.   V.  539;  Barry  v.   Butlin,   1   Curt.  o:$7  ;  Loder  v. 
WTielpley,  ill  X.  Y.  289(260);  Sheldon's  Will,  Hi  X.  V.  Sup]).  154. 
Barry  v.  Butlin,  1  Curt.  (;:;:. 

M  itter  of  Will  of  Smith,  95  X.  V.  516  ;  Tyler  v.  Gardiner,  85  X.  V.  559. 
Fritz  v.  Turner,  46  X.  J.  Eq.  515.    Sec  Jones  v.  Robertson,  87  Mo.  App. 
L68 

'  D:,!,  ,  Dale,  88  X.  J.  Eq,  271  ;  Carroll  v.  House,  22  AH  Rep.  191;  Lyons 
v.  Campbell,  88  Ala.  462;  Tyler  v.  Gardiner,  85  X.  V.  559;  Roberts  v. 
Trawick,  18  Ala.  7m  ;  Matter  of  Westurn,  60  Hun  '.".is;  Cowee  v.  Cornell  i  i 
N    Y.  :tl   (99). 

'Heilbi  9Penn.  Co.  Ct.   R.  850 ;  Wallacev.  Han  Mich. 

B98  i 


98  UNDUE  INFLUENCE. — FRAUD. 

FRAUD.— SURREPTITIOUS  SUBSTITUTION. 
Doc  on  the  demi§e  of  Small  and  others  against  Allen. 

Court  op  King's  Bench,  1799. 
(8  T.  R.  147.) 

Suit  in  ejectment  involving  title  to  certain  premises  in  Shrop- 
shire. Testator  had  executed  one  will  March  5, 1762,  and  a  second 
March  20,  1762.  The  suit  turned  on  the  question  which  of 
these  was  the  valid  last  will.  At  the  trial  before  Thompson,  Baron, 
at  the  assizes  for  the  County  of  Salop  the  due  execution  of  the 
will  of  the  20th  of  March,  1762,  being  proved,  the  defendant,  who 
wished  to  set  up  the  will  of  the  5th  of  March  preceding,  offered 
to  call  a  witness  to  prove  that  she  was  in  the  room  when  the  testa- 
tor executed  the  will  of  the  20th  of  March,  and  that  at  the  time 
of  the  execution  the  testator  inquired  whether  it  was  the  same  as 
the  former  ;  and  was  told  that  it  was.  This  evidence  was  objected 
to  and  the  objection  allowed,  and  there  was  a  verdict  for  the  plain- 
tiff, with  liberty  to  the  defendant  to  move  for  a  new  trial  in  case 
the  evidence  ought  to  have  been  received.  A  rule  to  show  cause 
was  accordingly  obtained. 

Lord  Kenyon,  Ch.  J. — I  think  that  this  evidence  ought  to  have 
been  received.  The  testator  having  made  one  will,  which  (is  ad- 
mitted) was  a  good  will,  and  being  pressed  by  certain  persons 
around  him  to  make  another  will,  asked  in  the  presence  of  credi- 
ble witnesses  whether  or  not  the  second  will,  which  was  brought  to 
him  to  be  executed,  were  the  same  as  the  first,  which  was  answered  in 
the  affirmative.  It  turns  out  that  it  was  different  from  the  first 
will,  and  the  question  here  is  whether  or  not  that  evidence  ought 
to  be  received.  Our  decision  will  not  in  the  least  tend  to  repeal 
the  Statute  of  Frauds,  or  contradict  the  case  of  Selwm  v.  Browne.1 
I  agree  that  the  contents  of  a  will  are  not  to  be  explained  by  parol 
evidence ;  but,  notwithstanding  that  act,  evidence  may  be  given 
to  shew  that  a  will  was  obtained  by  fraud.  And  the  effect  of  the 
evidence  offered  in  this  case  was  to  shew  that  one  paper  was  ob- 
truded on  the  testator  for  another  which  he  intended  to  execute. 

[The  report  gives  a  brief  opinion  to  the  same  effect  by  Grose, 
J. ;  and  Lawrence,  J.,  also  concurred.] 

Rule  absolute. 

1  Cas.  temp  Talbot,  240  ;  4  Bro.  P.  C.  179  (186). 


INFLUENCE   OF   WIFE.  99 

CONSTRAINT.— SICK   AND   FEEBLE  TESTATOR. 
Hacker  v.  Newborn,  a  Sussex  Cause. 

Banc.  Sup.,  1654. 
(Styles,  427.) 

If  a  Man  make  his  Will  in  his  Sickness,  by  the  over-importuning 
of  his  Wife,  to  the  end  he  may  be  quiet,  this  shall  he  said  to  be 
a  Will  made  by  constraint,  and  shall  not  be  a  good  Will.  By 
Rolle  chief  justice,  In  a  Tryal  at  the  Bar  in  the  Case  of  one 
Hecker  and  Newborn,  Mich.  1(554. 


UNDUE  INFLUENCE.— GENERAL   PRINCIPLES.— INFLUENCE  OF 

WIFE. 

Hall   v.  Hall. 

English  Court  of  Probate,  1868. 
(L.  R.  1  P.  &  D.  481.) 

This  was  a  testamentary  suit  in  which  the  plaintiff,  Ann  Hall, 
propounded  the  will  of  her  deceased  husband,  John  Hall.  The 
defendant,  William  Hall,  the  brother  of  the  deceased,  pleaded  that 
the  will  was  obtained  by  the  undue  influence  of  the  plaintiff.  Issue 
was  joined  on  this  plea,  and  the  cause  was  tried  on  the  6th  and 
7th  of  March,  1808,  before  Sir  J.  P.  Wilde,  by  a  special  jury. 
The  deceased  was  a  fanner  and  land  valuer  near  Nottingham,  and 
by  the  will  in  question  he  left  the  whole  of  his   property,  of  the 

value  of  between    615,000  and    620,000,  to  his  wife. 

Sir  •/.  P.  Wihi.  in  summing  up,  gave  the  following  direction 
t<>  the  jury  on  the  question  of  undue  influence:  To  make  a  good 
will  ;i  man  musl  be  a  fvc('  agent.  But  all  influences  are  not  un- 
lawful. Persuasion,  appeal-  to  the  affections  Or  ties  of  kindred,  to 
ntiimiit  of  gratitude  for  pasl  services,  or  pity  for  future  desti- 
tution, or  the  like,  these  are  all  legitimate,  and  may  be  fairly 
pressed  on  a  testator.  On  the  other  hand,  pressure  of  whatever 
character,  whether  acting  on  the  fears  or  the  hopes,  if  so  exerted 
as  tn  overpower  the  volition  without  convincing  the  judgment,  is 
aBpeciesof  restraint  under  which  no  valid  will  can  be  made.  Im- 
portunity  or  threats,  such  as  the  testator  has  not  the  courage  to 


100  UNDUE  INFLUENCE. — FRAUD. 

resist,  moral  command  asserted  and  yielded  to  for  the  sake  of  peace 
and  quiet,  or  of  escaping  from  distress  of  mind  or  social  discom- 
fort, these,  if  carried  to  a  degree  in  which  the  free  play  of  the 
testator's  judgment,  discretion,  or  wishes  is  overborne,  will  consti- 
tute undue  influence,  though  no  force  is  either  used  or  threatened. 
In  a  word,  a  testator  may  be  led  but  not  driven  ;  and  his  will  must 
be  the  offspring  of  his  own  volition,  and  not  the  record  of  some 
one  else's. 

His  Lordship  went  on  to  say  that  in  this  case  the  question  was 
one  of  credibility,  for,  according  to  the  evidence  on  the  one  side, 
the  plaintiff  had  procured  the  will  by  violence,  threats,  and  intim- 
idation, whilst,  according  to  the  evidence  of  the  plaintiff  and  her 
witnesses,  she  had  not  even  resorted  to  persuasion. 

The  jury  found  that  the  plea  of  undue  influence  was  proved. 

The  Court  pronounced  against  the  will  and  condemned  the  plain- 
tiff in  costs. 

UNDUE  INFLUENCE.— SUSPICIOUS  CIRCUMSTANCES. 
In  re  Bernsee's  Will.1 

New  York  Supreme  Court,  1892. 
(17  N.  Y.  Supp.  669.) 

Appeal  from  decree  of  Surrogate  of  Kings  County,  admitting 
to  probate  a  paper  purporting  to  be  the  will  of  Adelina  D.  Bernsee, 
deceased.  Two  questions  were  raised  on  the  appeal :  first,  whether 
due  execution  was  sufficiently  proved,  and  second,  whether  the 
will  was  framed  by  undue  influence. 

Pratt,  J.  (After  finding  that  due  execution  had  not  been 
proved).  2.  Was  the  will  framed  by  undue  influence?  While 
this  fact  is  to  be  proved,  not  presumed,  the  undisputed  facts  tend 
strongly  to  the  conclusion  that  such  was  the  case.  A  prior  will 
which  divided  the  property  equally  between  the  children  of  testa- 
trix, two  sons  and  two  daughters ;  uninterrupted  affectionate  rela- 
tions between  testatrix  and  at  least  one  of  the  daughters ;  her 
residence  with  the  sons  at  the  time  of  the  making  of  the  will ;  her 
refusal,  or,  at  least,  neglect,  to  see  either  daughter  after  she  took 

1  It  will  be  noticed  that  this  is  a  recent  decision  of  the  Supreme  Court,  and 
may  yet  be  passed  on  by  the  Court  of  Appeals.  The  facts  as  here  stated  are, 
however,  certainly  evidence  competent  on  the  question  of  undue  influence. 


PERSUASION.  101 

up  her  residence  with  the  sons ;  the  refusal  of  the  daughters  to 
recognize  the  alleged  wife  of  one  of  the  sons,  as  not  married  to 
him  ;  the  declaration  in  the  will  of  untilial  conduct  of  the  daughters, 
against  the  uncontradicted  proof ;  the  failure  to  call  the  draughts- 
man of  the  will ;  the  presence  of  the  son  at  the  time  of  the  execu- 
tion, when,  if  Mr.  Black  is  to  be  believed,  he  had  nothing  to  do, 
and  did  nothing  ;  her  nervous  and  very  excited  condition  at  the 
time,  which  is  not  disputed  ;  her  entire  disinheritance  of  her 
daughters,  and  the  giving  of  her  entire  estate  to  her  sons,  with 
whom  she  lived, — all,  unexplained,  tend  powerfully  to  show  undue 
influence.  These  circumstances  called  strongly  upon  the  surrogate 
for  the  exercise  of  his  discretion  in  calling  for  the  draughtsman  of 
the  will  to  ascertain  who  prompted  it,  and  the  conditions  surround- 
ing its  preparation.  Upon  the  facts,  therefore,  the  judgment 
shonld  be  reversed.  There  were  several  rulings  of  the  surrogate, 
in  the  rejection  and  striking  out  of  testimony,  which  appear  to 
have  been  erroneous,  but  which  it  is  unnecessary  to  consider. 

I  >!//>■  in  an,  J.,  concurring.     Barnard,  P.  J.,  dissenting. 


UNDUE  INFLUENCE.— GENERAL  PRINCIPLES.— PERSUASION. 
Earl  or  Scfton  and  Another  v.  llopwood. 

Nisi  Prius,  Nortiikkn  Circuit,  1855. 
(1  F.  &  F.  578.) 

This  was  an  issue  directed  by  the  Court  of  Chancery  to  ascertain 
whether  certain  i lociin iciit s  dated  the  L2th  of  April,  and  the  Mth 
of  May.   L853,  were   respect ively   the  codicil    and    will   of   Robert 

( 1-regge  I  [opwood.  ( me  <>f  the  questions  raised  was  that  of  undue 
influence. 

It  appeared  thai  Mr.  llopwood  was  the  owner  of  an  ancient 
family  estate  culled    llopwood   1  [all,  and  of  other  freehold   property, 

including  a  colliery,  named   llopwood  Colliery,  and  that  at  the 

times  of  making  hi.s  codicil  and  his  will,  and  of  his  death,  he  had 
an  i  •  I  <  I  ■  •  - 1  son,  the  defendant,  who  was  married  and  had  a  BOI1  and 
four  daughters,  and  he  had  also  tWO  other  Mins  and  a  daughter. 

By  the  codicil  Lord  Sefton  was  appointed  executor,  and  by  the 
will,  which,  like  the  codicil,  was  drawn  ami  witnessed  by  the  family 
solicitor,  Mr.  Hopwood  revoked  former  testamentary  dispositions, 


102  UNDUE  INFLUENCE. — FRAUD. 

in  order,  as  alleged,  to  mark  bis  indignation  against  the  defendant, 
and  cut  him  off  entirely. 

The  evidence  on  the  point  of  undue  influence  by  defendant's 
brothers  against  him  was  conflicting. 

Cresswell,  J.,  directed  the  jury  as  to  the  law,  thus — (after 
stating  the  rule  of  testamentary  capacity  and  the  right  of  a  com- 
petent testator  to  dispose  of  his  property  as  he  pleases) : 

I  had  supposed,  during  a  great  portion  of  this  trial,  that  would 
be  the  sole  question  you  would  have  to  deal  with,  but  towards  the 
close  of  the  Attorney-General's  address,  I  apprehend  that  he  meant 
to  raise  another  question  with  which  I  shall  therefore  think  it 
necessary  to  trouble  you,  namely,  the  question  of  whether,  assuming 
Mr.  Ilopwood  had  capacity  to  dispose  of  his  property,  this  was  his 
will  or  not.  The  subject  of  wills  procured  by  influence  has  been 
a  good  deal  discussed  of  late  years,  and  I  think  that  the  law,  as  at 
present  understood,  has  somewhat  modified  the  earlier  opinions  on 
the  subject.  1  take  it,  that  in  order  to  invalidate  a  will  on  the 
score  of  influence,  it  is  not  sufficient  that  you  should  think  the 
testator  has  been  persuaded  into  making  a  will  of  a  particular  kind, 
that  he  has  been  persuaded  to  benefit  this  or  that  person  to  a  certain 
extent,  for  in  that  case  I  fear  that  a  vast  number,  if  not  the  greater 
proportion,  might  be  set  aside,  and  what  is  the  sort  of  influence 
that  is  to  set  aside  a  will  4  Is  it  the  influence  exercised  by  acts  of 
attention  and  kindness?  Is  it  the  influence  acquired  by  showing 
devoted  affection?  Certainly  not.  And  yet  how  many  wills  are 
made  under  the  influence  of  feelings  so  excited.  It  must  be  an 
influence  depriving  the  party  of  the  exercise  of  his  judgment  and 
his  free  action  ;  it  must  be  such  an  influence  as  induces  you  to 
think  that  the  will,  when  executed,  is  not  the  will  he  desires  to 
execute,  that  he  does  not  benefit  the  parties  whom  he  would  wish 
to  benefit,  but  that  he  is  doing  that  which  is  not  his  desire,  and 
therefore  not  his  will. 

Yerdict  for  the  defendant. 


UNDUE  INFLUENCE.  103 

UNDUE   INFLUENCE. 
Bush  v.  Lisle. 

Kentucky  Court  of  Appeals,  1889. 
(89  Ky.  393.) 

Lewis,  C.  J. — This  is  an  appeal  from  a  judgment  rendered  on 
verdict  of  the  jury  finding  a  paper  dated  October  30,  1876,  and 
probated,  in  the  county  court,  not  to  be  the  true  last  will  and  tes- 
tament of  F.  M.  Lisle,  who  died  in  February,  1879,  at  about  the 
age  of  58  years,  without  wife  or  child.  He  left  no  parents,  his 
mother  having  died  before  he  did,  though  subsequent  to  date  of 
the  paper,  those  who  would  have  inherited  his  estate  in  case  of  no 
will,  being  one  brother,  three  sisters,  and  children  of  each  of  four 
>i.-ters  who  were  dead.  But  he  devised,  or  attempted  to  devise, 
the  whole  of  his  estate,  of  value  about  $20,000,  consisting  of 
choses  in  action,  money,  and  land,  to  his  sister  Minerva  Bush,  her 
foiii-  (laughters,  and  husband.  Robert  E.  Bush;  there  being  given 
to  the  last  named,  who  was  appointed  executor,  five  shares  of 
bank  stock,  to  each  of  the  four  nieces  specified  land  and  money, 
and  to  the  sister  the  residue.  The  grounds  upon  which  the  other 
heirs  at  law  assail  the  validity  of  the  paper  as  a  will  are  want  of 
testamentary  capacity  and  undue  influence.  It  appears  that  previ- 
ous to  l^iW,  the  decedent  hail  been  a  professional  gambler,  but  as 
the  effect  of  syphilis  contracted  many  years  previously,  from  which 
he  never  recovered,  and  probably  of  excess  and  dissipation,  he  be- 
came a  wreck  physically,  losing  his  hair,  teeth,  eyesight  partially, 

and  use  of  his  lower   limbs  to  such  an  extent    as  to  make  crutches 

necessary  for  locomotion;  and  in  that  condition  he  went  to  the 
residence  of  a  double  cousin  in  Fayette  County,  Rufus  Lisle,  with 
whom  he  stayed  until  L 867  or  1868,  when  he  removed  to  the  house 
of  Robert  E.  Bush,  in  ('lark  County,  where  he  remained  until  his 
death:  a  room  adjoining  the  dwelling-house  having  been  con- 
Btructed  at  his  own  Instance  and  expense  for  him  to  occupy.    With- 

in  a  year  or  two  after  going  to  the  hoii-e  .if  hi-  brother-in-law  he 
became  totally  blind,  unable  to  walk,  and   from    hi-   mouth,  which 

-  drawn  out  of  it-  natural  -li.i | >< ■.  offensive  matter  escaped.  So 
he  thereafter  required  ami  received  from  those  t"  whom  he  at- 
tempted to  '_rivo  lib  estate  the  mo  I  a  siduous,  careful,  and  affec- 
tionate nursing  and  attention,     lie  had,  before  going  there,  as  re- 


104  UNDUE  INFLUENCE. — FEAUD. 

lief  from  his  intense  suffering  in  his  lower  limbs,  contracted  and 
continued  to  his  death,  the  habit  of  using  morphine,  a  compara- 
tively large  quantity  of  which  he  daily  consumed.  It  further  ap- 
pears that  during  paroxysms  of  physical  pain  he  was  excessively 
and  offensively  profane  and  blasphemous  ;  and  from  these  two 
habits,  both  mental  incapacity  to  make  a  will  and  undue  influence 
are  sought  to  be  deduced  as  existing  facts.  There  is  no  evidence 
whatever  of  unreasonable  prejudice  on  his  part  towards  any  of  the 
contestants,  nor  that  he  was  swayed  or  prompted  to  abandon  any 
fixed  purpose,  or  to  ignore  any  worthy  or  recognized  claim  on  his 
bounty.  On  the  contrary,  ten  years  before  the  date  of  the  paper, 
when  his  situation  was  less  deplorable  than  it  afterwards  became, 
and  when  there  is  no  evidence  that  he  was  not  entirely  rational, 
he  offered  to  give  his  whole  estate  to  his  cousin,  Unfits  Lisle,  to 
secure  a  home  and  needful  care  and  attention  while  he  lived,  and 
the  disposition  he  finally  made  of  it  was  consistent,  natural,  and 
commendable,  because  intended  as  a  grateful  recompense,  no  more 
probably  than  adequate,  to  those  who  did  minister  to  him  in  afflic- 
tion. The  person  who  wrote  the  paper  testifies  that  besides  him- 
self no  one  was  present ;  that  the  decedent  was  in  full  possession 
of  his  mental  faculties,  and,  without  aid  or  suggestion,  dictated 
the  paper  as  written ;  and  the  provisions  of  it  show  not  only  a 
preconceived  and  fixed  plan  for  disposing  of  his  estate,  and  full 
knowledge  of  the  character  and  value  of  it,  and  the  persons  to 
whom  it  was  left,  but  unusual  intelligence  of  the  legal  restraints 
and  limitations  put  upon  the  devises  to  his  nieces. 

Of  the  very  large  number  of  witnesses  who  testified  on  the  trial 
but  three  express  any  doubt  of  capacity  of  the  decedent  to  make 
a  will.  One  of  them,  who  is  a  contestant,  stated  as  his  opinion 
that  he  did  not  think  a  man  could  be  a  sane  man  who  used  blas- 
phemous language  towards  Jesus  Christ.  Another,  who  visited 
him  as  a  physician  once  or  twice,  expressed  the  opinion  that  he 
did  not  think  a  person  who  used  morphine  and  whiskey  as  decedent 
did  was  capable  of  taking  into  consideration  his  property  and  re- 
lations, and  making  a  fair,  just,  and  equitable  disposition  of  his 
property,  though  he  does  not  undertake  to  say  what  quantity  of 
either  he  was  in  the  habit  of  using,  nor  what  his  mental  condition 
actually  was  when  the  paper  was  written,  nor  when  it  was,  two 
days  afterwards,  signed  and  acknowledged.     And  the  third,  who 


UNDUE  INFLUENCE.  105 

once  saw  him  while  in  a  paroxysm  of  pain,  testified  his  professional 
opinion  to  be  that  no  man  who  had  been  an  invalid  for  a  number 
of  years,  and  under  influence  of  morphine  for  such  a  length  of 
time,  is  competent  to  transact  business.  But  neither  one  of  those 
three  witnesses,  nor  any  one  else  throughout  the  entire  trial,  testi- 
fies to  a  single  irrational  act  or  speech  by  the  decedent,  or  even 
profane  language  when  he  was  not,  for  a  time,  racked  with  pain, 
with  the  single  exception  of  J.  B.  Lisle,  the  principal  contestant, 
who  refers  to  one  trivial  remark  about  which  it  was  shown  by 
another  witness  he  evidently  misunderstood  the  decedent.  On 
the  contrary,  those  acquainted  with  him  testified  he  possessed  a 
clear,  vigorous  intellect  and  strong  will,  which  continued,  when  he 
was  not  in  a  sleepy  state  from  use  of  morphine,  up  to  his  death  ; 
and  it  clearly  and  fully  appears  that  from  the  time  he  went  to  the 
house  of  Robert  E.  Bush  to  the  date  of  the  paper,  and  even  after- 
wards, he  transacted  business,  loaning  money,  buying  land,  keep- 
ing account  of  interest  and  dividends  on  stock  due  him,  was  con- 
sults 1  by  his  friends  about  business  matters,  discussed  politics, 
banking,  and  neighborhood  affairs  with  perfect  intelligence,  and 
kept  full  control  of  his  estate,  so  that  when  he  died  there  had  not 
been  any  of  his  income  wasted  or  disposed  of  at  all,  except  with 
his  consent  and  full  knowledge. 

It  seems  to  us,  as  the  record  stands,  there  is  a  total  failure  by 
the  contestants  t<>  show  lack  of  mental  capacity  on  the  part  of  the 
decedent  to  make  a  will,  ami,  in  our  opinion,  evidence  of  undue 
influence  by  the  devisees,  or  of  any  other  person,  is  equally  un- 
satisfactory, and*  the  venlirt  of  the  jury  ran  be  accounted  for  only 
on  the  supposition  that  their  attention  was  diverted  from  facts 
proved,  to  abstract  theoriesof  physicians  who  never  examined  nor 
had  knowledge  of  the  actual  mental  condition  of  decedenl  when 
the  paper  was  executed.  It  is  needless  to  refer  in  detail  to  the 
testimony  of  the  learned  experts,  because  there  was  such  an  agree- 
ment in  their  statements  as  to  make  reference  to  the  evidence  of 
one  Buffice  for  all.  The  general  conclusion  drawn  from  the  hypo- 
thetical case  assumed  by  them  is  thai  the  brain  of  a  person  in  the 
condition  the  decedenl  was  Bhown  to  be  in,  if  eon  lined  in  the  same 
family  eighl  or  nine  years,  taking  morphine  habitually  three  or 
four  times  per  day,  administered  by  members  of  thai  family, 
would  have  no  capacity  to  make  a  will  or  do  anything  which  he 


100  IMME    INFLUENCE. — FRAUD. 

believed  would  be  contrary  to  the  wishes  of  such  family,  and 
would  seek  by  every  means  to  please  them,  although  he  at  the 
Bauie  time  might  talk  intelligently,  and  impress  an  ordinary  ob- 
server as  being  exceedingly  bright,  It  seems,  however,  to  be  con- 
ceded by  the  experts  that  the  use  of  morphine  does  nol  necessarily 
impair  the  intellectual  faculties,  and  consequently  their  evidence, 
if  pertinent  in  this  case  at  all,  has  relation  alone  to  the  question  of 
undue  influence.  Expert  testimony  is  worse  than  useless,  it  is 
misleading  when  given  on  a  subject  about  which  there  is  proof  so 
convincing  as  to  leave  no  reasonable  ground  for  dispute,  or  when 
variant  from  the  actual  state  or  condition  shown  by  positive  evi- 
dence to  exist,  and  no  conclusion  reached  by  a  mere  theorist,  how- 
ever learned,  can  be  reasonably  accepted  and  applied  in  any  case 
without  being  founded  on  and  consistent  with  the  facts  as  they 
are  proved  to  be.  If  there  had  been  doubt  or  contrariety  of  evi- 
dence in  regard  to  the  real  state  of  the  decedent's  intellectual  fac- 
ulties,  it  might  have  been  pertinent  to  show  by  experts  what  are 
the  usual  consequences  of  physical  infirmities  and  habits  such  as 
his.  But  it  does  not  appear  that  his  mind  was  impaired  or  affected 
by  the  disease  he  was  afflicted  with,  nor  that  he  was  dependent 
upon  Robert  E.  Bush  or  any  of  his  family  for  morphine,  nor  was 
their  aid  in  procuring  it,  or  permission  to  use  it,  ever  sought  by 
him.  On  the  contrary,  he  had  an  estate  sufficient  to  gratify  every 
wish  and  supply  every  want,  the  character  and  value  of  which  he 
well  knew,  and  the  management  and  control  of  which  he  kept 
without  dispute  or  question  till  his  death,  and  the  morphine  used 
by  him  was  purchased  with  his  own  means  and  at  his  own  pleas- 
ure, without  hindrance  or  protest  from  any  one.  And,  whatever 
may  be  the  ordinary  effect  of  use  of  morphine,  the  evidence  in 
this  case  does  not  show  any  weakening  of  the  will  power  of  the 
decedent,  nor  the  slightest  effort  on  the  part  of  any  one  of  his 
devisees  or  other  person  to  influence  or  control,  by  coercion,  argu- 
ment, or  persuasion,  the  final  disposition  of  his  estate,  nor  that  he 
was  influenced  to  dispose  of  it  as  he  did  by  any  other  reason, 
motive,  or  feeling  than  gratitude  to  and  affection  for  Mrs.  Bush, 
who  was  his  favorite  sister,  as  shown  by  two  previous  wills,  in 
one  of  which  he  gave  his  estate  to  her  and  a  brother  since  dead, 
and  in  the  other  the  bulk  of  it  to  her,  and  by  the  significant  fact 


UNDUE   INFLUENCE.  107 

that,  when  he  became  a  helpless  and  doomed  invalid,  he  selected 
her,  of  all  others,  to  nurse  and  care  for  him. 

There  is  some  evidence  tending  to  show  her  anxiety  about  the 
manner  in  which  he  would  dispose  of  his  property,  but  none  that 
she  or  any  one  else  attempted  to  influence  him  in  regard  thereto 
by  importunity,  persuasion,  or  even  suggestion.  In  two  instances 
she  interfered  to  prevent  gifts  by  him  to  other  persons,  one  of 
them  being  a  drunken  man,  and  the  other  a  lewd  woman,  his 
former  mistress,  to  whom  he  had  previously  given  money,  and 
who  was  endeavoring  to  obtain  more.  It  also  appears  that  he 
was  unwilling  for  his  sister  to  leave  him,  and  some  of  the  wit- 
nesses quote  her  as  saying  he  displayed  weakness  by  shedding 
tears  when  she  did  go  away  from  home,  leaving  him  to  the  care 
of  others.  But  there  is  no  evidence  showing,  or  from  which  it 
can  reasonably  be  inferred,  that  any  of  the  devisees  acquired  such 
dominion  or  influence  over  him  as  deprived  him  of  the  power  to 
dispose  of  his  estate  in  accordance  with  his  own  wishes;  and  in 
view  of  the  claims  of  other  relations,  and  without  the  existence 
and  actual  exercise  of  such  dominion,  as  has  often  been  held  by 
this  court,  he  must  be  regarded  as  executing  the  will  without  un- 
due influence;  for  neither  mere  appeals  to  the  affections,  nor 
arguments  addressed  to  the  understanding,  even  when  effective, 
amount  to  undue  influence,  in  the  meaning  of  the  law.  There 
was,  however,  according  to  the  evidence,  no  other  influence  ex- 
erted or  appeal  made  by  the  devisees  than  such  asallectionate  care 
and  attention  offered,  which  the  law  upholds  rather  than  con- 
demns. In  our  opinion,  the  evidence  in  this  case  shows  clearly 
that  F.  M.  Lisle  had  testamentary  capacity,  and  freely  and  with- 
out undue  influence  executed  the  paper  in  contest,  and  it  should 
be  held  his  true  last  will  and  testament.  Wherefore  the  judg- 
ment must  be  reversed,  and,  as  the  verdict  is  not  sustained  by  the 
evidence,  the  cause  is  remanded,  with  directions  to  the  lower 
court  to  dismiss  the  appeal  from  tl rder  of  the  county  court, 

probating  and  admitting  to  record  the  paper  as  his  will. 


108  UNDUE   INFLUENCE. — FRAUD. 

UNDUE  INFLUENCE. 
natter  of  Will  of  Budlong. 

New  York  Court  op  Appeals,  1891. 
(126  N.  Y.  423.) 

O'Brien,  J. — Milton  Budlong  died  on  the  20th  day  of  April, 
1880,  having  made  a  will  on  the  4th  of  January  previous,  in 
which  he  disposed  of  his  real  and  personal  estate,  amounting  to 
considerably  over  $50,000.  The  validity  of  this  will  was  the  sole 
question  involved  in  these  proceedings.  He  left  a  widow,  three 
sons,  and  three  daughters  surviving,  who  were  the  natural  objects 
of  his  bounty  in  the  distribution  of  his  estate.  The  will  provided 
for  the  comfortable  support  of  the  widow,  according  to  her  station 
in  life,  which  support  was  in  lieu  of  dower,  and  made  a  charge 
upon  the  real  estate.  To  one  of  the  daughters  he  devised  two 
houses  and  lots  in  the  village  of  Fairport ;  to  another  he  gave  a 
money  legacy  of  $5,000.  He  gave  the  residue  of  his  real  and 
personal  estate  to  two  of  the  sons,  in  the  proportion  of  one-third 
to  one  and  two-thirds  to  the  other,  the  larger  share,  however,  be- 
ing chargeable  with  a  legacy  of  $5,000  to  the  third  son,  Levi  S. 
Budlong.  To  the  other  daughter,  Mrs.  Louisa  J.  Cole,  who  is 
the  contestant  of  the  will,  he  gave  a  legacy  of  five  dollars.  The 
three  sons  were  named  as  executors,  and,  having  petitioned  the 
surrogate  of  Monroe  County  to  admit  the  will  to  probate,  the 
daughter  above  named  filed  objections  that  the  instrument  was 
not  the  will  of  the  deceased  ;  that  at  the  time  of  its  execution  he 
was  not  capable  of  making  a  will,  and  that  the  proponents,  or 
some  of  them,  procured  its  execution  by  means  of  deceit,  fraud, 
and  undue  influence.  Upon  a  trial,  in  which  a  large  volume  of 
testimony  was  taken,  the  surrogate  made  a  decree  adjudging  the 
will  to  be  valid  and  admitting  it  to  probate.  While  the  case  was 
pending  before  the  surrogate,  the  contestant  died,  and  her  heirs 
at  law  were  substituted  in  her  place.  The  General  Term,  upon 
their  appeal,  reversed  the  judgment,  and  directed  a  new  trial 
upon  two  specific  issues  of  fact  by  a  jury.  These  questions  were 
whether  the  deceased  was  of  sound  mind  at  the  time  of  executing 
the  instrument,  and  whether  its  execution  was  procured  by  fraud 
and  undue  influence.  The  new  trial  resulted  in  a  verdict  of  the 
jury,  finding  that  the  deceased  was  of  sound  mind  when  the  in- 


UNDUE  INFLUENCE.  109 

strument  was  executed,  and  capable  of  making  a  will,  but  that  its 
execution  was  procured  by  undue  influence  and  fraud.  The  judg- 
ment in  favor  of  the  contestants  entered  upon  this  verdict,  has 
been  affirmed  by  the  General  Term.  [The  Court  here  state  the 
terms  and  scope  of  the  notice  of  appeal,  and  discuss  the  limits  of 
their  power  to  review  ;  and  then  proceed.]  The  only  record  that  is 
properly  before  us  is  that  of  the  trial  at  the  Circuit ;  and  we  can  re- 
view only  the  judgment  entered  thereon  and  subsequent  orders  and 
proceedings.  The  judgment  is  based  upon  a  finding  by  the  jury 
that  the  instrument  purporting  to  be  the  will  of  the  deceased  was 
not  his  free  and  voluntary  act,  but  the  result  of  undue  influence 
and  fraud,  by  means  of  which  his  mind  was  prejudiced  against 
one  of  his  children  by  one  or  more  of  the  others,  and  his  natural 
affection  for  her  perverted.  It  must  be  admitted  that  the  jury 
would  have  been  warranted  in  taking  a  contrary  view  of  the  facts, 
but  at  the  same  time  their  finding  is  not,  by  any  means,  so  desti- 
tute of  evidence  for  its  support  as  to  authorize  this  court  to  inter- 
fere. The  deceased  was  seventy-nine  years  old  when  he  made 
the  will.  His  mental  and  physical  powers,  which  had  been  re- 
markably strong  and  vigorous  through  life,  began  to  weaken.  He 
was  attacked  with  a  severe  illness,  from  which  it  was  supposed  by 
the  family  he  could  not  recover,  and  it  was  during  this  illness  and 
in  expectation  of  death  as  the  result  of  it,  that  the  will  was  exe- 
cuted. The  two  sons  who  received  the  greater  part  of  the  estate 
were  with  him  during  his  sickness,  and  one  or  both  of  them  pro- 
cured the  attorney  who  drew  the  instrument.  There  was  some 
proof  of  his  declarations,  made  shortly  before  this  illness,  that  he 
did  not  intend  to  make  a  will,  but  to  die  intestate,  to  the  end  that 
all  his  children  should  share  equally  in  his  estate  under  the  law  of 
the  State.  The  two  sons  who  were  preferred  were  men  of  large 
property  in  their  own  right,  and  up  to  a  time  not  long  before  the 
will  was  made,  the  acts  and  declarations  of  the  father  tended  to 
Bhow  that  all  his  children  were  equally  dear  to  him.  The  claim 
..I'  the  contestants  was  that,  the  sudden  change  in  the  father's  affec- 
tions towards  his  daughter,  which  resulted  in  such   an   apparently 

unjust  discrimination  against  her,  as  appears  on  the  face  ol  the 
wiil,  was  broughl  about  by  means  of  a  letter  shown  and  read  to 

him  by  another  daughter.  Mrs.  Hunt,  a  short  time  before  the  exe- 
cution of  tin;  instrument.    This  letter  was  one  of  the  last  of  a 


110  UNDUE  INFLUENCE. — FRAUD. 

series  of  events  which  were  pressed  upon  the  jury  as  proof  that 
the  father's  affections  had  become  alienated  from  his  daughter, 
the  contestant,  by  misrepresentation,  resulting  in  ignoring  her  in 
the  final  distribution  of  his  property.  It  appeared  that  some 
nineteen  years  before  the  death  of  the  father,  Levi  S.  Budlong, 
one  of  the  sons,  married  a  domestic  in  the  family.  The  father 
felt  humiliated  and  grieved  in  consequence  of  this  alliance,  threat- 
ened to  disinherit  his  son,  and  refused  to  be  reconciled  to  him  or 
his  wife.  After  the  lapse  of  some  time  his  attitude  towards  them 
softened,  and  he  became  more  friendly,  regarding  the  marriage  as 
an  accomplished  fact,  and  manifesting  a  disposition  to  make  the 
best  of  it.  The  marriage,  however,  between  the  parties  them- 
selves proved  to  be  an  unhappy  one.  There  is  evidence  in  the 
case  tending  to  show  that  the  husband  ill  treated  the  wife,  and 
that  Mrs.  Cole,  his  sister,  was  a  witness  to  at  least  one  violent  as- 
sault upon  her,  and  that  she  on  that  occasion  reproached  her  bro- 
ther for  such  conduct.  During  the  year  previous  to  the  execu- 
tion of  the  will,  Levi  went  to  the  State  of  Iowa,  for  the  purpose 
of  obtaining  a  divorce  from  his  wife,  on  the  ground  of  cruel  and 
inhuman  treatment.  In  this  controversy  the  old  aversion  of  the 
father  towards  the  marriage  revived,  and  his  feelings  were  strong- 
ly enlisted  on  the  side  of  his  son  and  in  favor  of  the  divorce.  But 
it  appears  that  the  wife  resisted  the  proceedings  for  divorce,  con- 
sulted counsel  in  this  State,  followed  the  husband  to  Iowa,  and 
materially  interfered  with  his  plans,  if  she  did  not  succeed  in  en- 
tirely defeating  them.  This  was  a  bitter  disappointment  to  Levi, 
and  he  attributed  his  failure  to  the  instigation,  assistance,  and 
advice  of  Mrs.  Cole  to  his  wife,  or,  at  least,  pretended  that  she 
had  joined  his  wife  in  opposition  to  him.  On  the  2d  of  October, 
1879,  Levi  addressed  a  long  letter  from  Iowa  to  his  other  sister, 
Mrs.  Hunt,  who  lived  near  her  father.  In  this  letter  he  took 
rather  a  gloomy  view  of  the  result  of  the  divorce  suit,  which  ap- 
peared to  be  pending,  described  the  visit  of  his  wife  to  the  West, 
and  its  effect  upon  the  suit,  and  reflected  bitterly  upon  the  con- 
duet  of  Mrs.  Cole  in  assisting  and  advising  his  wife,  with  the  re- 
sult of  bringing  much  trouble  and  disappointment  upon  him.  He 
requested  the  sister,  to  whom  the  letter  was  written,  to  show  it  to 
his  father,  and  she  complied  with  the  request.  Some  proof  was 
given  of  the  statements  of  the  father  after  he  had  seen  the  letter, 


UNDUE   INFLUENCE.  Ill 

tending  to  show  ill  feeling  toward  Mrs.  Cole  for  joining  in  the 
contest  against  her  brother,  who  was  described  by  the  father  as 
his  favorite  son.  Proof  was  submitted  to  the  jury,  consisting 
mostly  of  circumstances  and  facts,  tending  to  show  that  the  re- 
flections upon  Mrs.  Cole,  contained  in  the  letter,  were  substan- 
tially, if  not  wholly  without  foundation  in  fact,  and  that  the  writer 
intentionally  misrepresented  her  conduct. 

Some  proof  was  also  given  of  declarations  made  by  Levi,  tend- 
inis to  show  that  he  had  advised  his  father  to  make  a  will,  and 
that  if  he  left  Mrs.  Cole  anything,  he  would  litigate  with  her  as 
long  as  he  had  a  dollar  to  spend  in  that  way.  The  letter  and  the 
other  evidence  in  the  case  furnished  some  proof  that  Levi  at- 
tempted to,  and  did,  create  in  the  mind  of  the  testator  a  feeling 
of  prejudice  and  aversion  towards  his  daughter,  with  reference  to 
the  disposition  of  his  property,  which  found  expression  in  the 
will,  bo  far  as  it  relates  to  her.  The  court  instructed  the  jury 
that  if  Levi  wrote  the  letter,  knowing  that  its  statements  were 
untrue,  with  the  design  that  it  should  reach  his  father  and  influence 
him  in  the  disposition  of  his  property,  and  that  it  did  in  fact 
influence  him  to  disinherit  Mrs.  Cole,  then  a  case  of  undue  in- 
fluence and  fraud  was  made  out.  But  that  if  they  were  not  false, 
and  were  not  designed  to,  and  did  not  in  fact,  influence  the  father 
in  the  disposition  of  his  property,  then  the  letter  was  harmless. 
Sufficient  reference  has  been  made  to  the  evidence  to  show  that 
the  main  question  in  the  case,  and  around  which  the  parties  con- 
tended, was  one  of  fact  that  must  be  regarded  as  having  been  put, 
at  rest  by  the  verdict  of  the  jury.  The  counsel  for  the  propo- 
nents, by  exceptions  taken  to  the  charge  above  referred  to,  and  in 
the  argument  in  this  court,  contends  that  the  rule  stated  by  the 
learned  trial  judge;  was  erroneous.  His  position  is  that  as  the 
statements  in  the  letter,  whether  true  or  false,  and  with  whatever 
intent  written,  related  solely  to  the  relations  and  conduct  of  Mrs. 
<  Sole  towards  her  brother,  and  in  no  manner  to  her  feelings,  con- 
duct, or  relations  towards  her  father,  they  could  have  no  connection 
with  the  will,  lmt   related  to  matters  entirely  extraneous  t<>  it. 

That  at  m08l  tin-  statements  could    not-    be   regarded   as  anything 

beyond  the  complaints  of  one  child  against  another  to  the  lather, 
without  reference  to  Che  disposition  of  property,  and,  therefore, 
could  not  legally  affect  any  will  subsequently  made.     The  undue. 


112  UNDUE  INFLUENCE. — FRAUD. 

influence  and  fraud  which  the  law  guards  against  may  be  exercised 
in  an  almost  infinite  variety  of  ways.  Prejudice  and  aversion  to 
a  child  may  be  created  in  the  mind  of  a  testator  by  misrepresenta- 
tion of  the  conduct  and  feelings  of  this  child  towards  another 
which,  in  connection  with  other  facts,  such  as  were  shown  in  this 
case,  may  be  sufficient  to  affect  the  validity  of  a  will  in  which  the 
child  in  regard  to  whom  the  misrepresentations  were  made,  is 
ignored  in  the  distribution  of  the  father's  estate  by  will,  and  this 
is  especially  true  when  no  other  reason  is  apparent  for  a  grossly 
unjust  and  unequal  division  among  children,  with  an  apparently 
equal  claim  upon  the  testator's  bounty.  (Tyler  v.  Gardiner,  35 
N.  Y.  559  ;  Red.  Am.  Cases  on  Wills,  note  p.  522.)  In  the  course 
df  a  very  clear  and,  on  the  whole,  impartial  charge,  the  learned 
judge  who  presided  at  the  trial,  said  to  the  jury  that  "  if,  under 
all  the  circumstances  of  the  case,  you  find  that  this  will  was  un- 
natural in  its  provisions  and  inconsistent  with  the  duties  and 
obligations  of  the  testator  to  the  different  members  of  his  family, 
it  imposes  upon  the  proponents  the  duty  of  giving  some  reasonable 
explanation  of  its  unnatural  character,  or  at  least  of  showing  that 
it  was  not  the  result  of  mental  defect,  obliquity,  or  perversion." 
The  counsel  for  the  proponents  excepted  to  this  part  of  the  charge. 
It  must  be  read  in  connection  with  what  preceded,  in  which  the 
court  said  that  though  the  will  might  have  been  grossly  unjust  in 
its  provisions,  yet  that  fact  was  of  no  consequence  if  it  was  satis- 
factory to  the  party  who  made  it,  as  every  man  had  the  right  to 
dispose  of  his  property  according  to  his  own  will.  That  if  it  was 
the  testator's  preconceived  design  and  intention,  calmly  entered 
into,  to  disinherit  his  daughter,  Mrs.  Cole,  he  had  a  perfect  right 
to  do  so,  and  none  of  us  have  any  right  to  complain  of  the  exercise 
of  that  right,  provided  in  doing  so  he  exercised  his  own  will  and 
was  not  influenced  by  the  will  of  another.  The  fair  construction 
of  the  portion  of  the  charge  excepted  to  is  not  that  the  unequal 
division  of  the  testator's  property,  apparent  on  the  face  of  the 
will,  raised  a  presumption  of  undue  influence  or  fraud,  which  the 
proponents  were  called  upon  to  explain;  but,  if  upon  all  the 
proof  in  the  case,  the  jury  should  find  that  the  will  was  in  fact 
contrary  to  the  dictates  of  natural  affection,  and  was,  under  all 
the  circumstances,  unnatural  in  its  dispositions,  so  far  its  pro- 
visions would  be  evidence  of  mental  defect,  obliquity,  or  perver- 


BURDEN   OF   PROOF.  113 

sion  of  mind  which  would  require  explanation.  Thus  understood 
and  read  in  connection  with  the  other  propositions,  that  part  of 
the  charge  which  was  the  subject  of  this  exception  was  not  objec- 
tionable. A  learned  author  on  wills  has  stated  the  principle  in 
the  following  language,  which  we  think  expresses  substantially 
the  same  idea  as  that  intended  to  be  conveyed  by  the  charge,  if 
it  does  not  go  even  farther :  "  But  gross  inequality  in  the  disposi- 
tions of  the  instrument,  when  no  reason  for  it  is  suggested  either 
in  the  will,  or  otherwise,  may  change  the  burden  and  require 
explanation  on  the  part  of  those  who  support  the  will  to  induce 
the  belief  that  it  was  the  free  and  deliberate  act  of  a  rational, 
self-poised  and  clearly  disposing  mind."  (1  Kedf.  on  Wills,  557  ; 
Redf .  Am.  Case  on  Wills,  298,  note.)  There  are  numerous  other 
exceptions  in  the  record,  but  we  think  they  were  correctly  dis- 
posed of  in  the  court  below  (54  Hun  131),  and  do  not  call  for 
any  special  notice  here. 

The  judgment  should  be  affirmed,  with  costs  payable  out  of  the 
estate. 

All  concur. 

Judgment  affirmed. 

UNDUE  INFLUENCE.— MEANING  OF  TERM— BURDEN  OF  PROOF. 

Boyse  v.  Rossborougli. 

House  of  Lords,  1856,  1857. 
(6  H.  L.  C.  2.) 

This  was  an  appeal  from  a  decree  and  orders  of  the  Court  of 
Chancery  in  Ireland,  based  on  the  verdict  of  a  jury,  hostile  to  the 
paper  propounded  as  the  will  of  Coesar  Colclough.  Various  ques- 
tions were  involved,  and  among  others  the  question  whether  the 
jury  had  been  properly  instructed  on  the  law  of  undue  influence. 
On  this  subject  the  following  often-quoted  portions  are  given  from 
the  opinion  of 

The  Lord  Chancellor:  "  The  difficulty  of  deciding  such  a  ques- 
tion arises  from  the  difficulty  of  defining  with  distinctness  what  is 
undue  influence.  In  a  popular  sense  we  of  ten  speak  of  a  person 
exercising  undue  influence  over  another,  when  the  influence  cer- 
tainly is  not  of  a   nature  whieh  would  invalidate  a  will.      A   voiinir 

man   is  often  led  into  dissipation  by  following  the  example  of  a 
- 


114  UNDUE  INFLUENCE. — FRAUD. 

companion  of  riper  years,  to  whom  he  looks  up,  and  who  leads 
him  to  consider  habits  of  dissipation  as  venial,  and  perhaps  even 
creditable;  the  companion  is  then  correctly  said  to  exercise  an 
undue  influence.  But  if  in  these  circumstances  the  young  man, 
influenced  by  his  regard  for  the  person  who  had  thus  led  him 
astray,  were  to  make  a  will  and  leave  him  everything  he  possessed, 
such  a  will  certainly  could  not  be  impeached  on  the  ground  of  un- 
due influence.  Nor  would  the  case  be  altered  merely  because  the 
companion  had  urged,  or  even  importuned,  the  young  man  so  to 
dispose  of  his  property ;  provided  only,  that  in  making  such  a  will 
the  young  man  was  really  carrying  into  effect  his  own  intention, 
formed  without  either  coercion  or  fraud. 

"  I  must  further  remark  that  all  the  difficulties  of  defining  the 
point  at  which  influence  exerted  over  the  mind  of  a  testator  be- 
comes so  pressing  as  to  be  properly  described  as  coercion,  are 
greatly  enhanced  when  the  question  is  one  between  husband  and 
wife.  The  relation  constituted  by  marriage  is  of  a  nature  which 
makes  it  as  difficult  to  inquire,  as  it  would  be  impolitic  to  permit 
inquiry,  into  all  which  may  have  passed  in  the  intimate  union  of 
affections  and  interests  which  it  is  the  paramount  purpose  of  that 
connection  to  cherish ;  and  this  is  the  case  with  which  your  Lord- 
ships have  now  to  deal. 

"  In  order,  therefore,  to  have  something  to  guide  us  in  our  in- 
quiries on  this  very  difficult  subject,  I  am  prepared  to  say  that 
influence,  in  order  to  be  undue  within  the  meaning  of  any  rule  of 
law  which  would  make  it  sufficient  to  vitiate  a  will,  must  be  an 
influence  exercised  either  by  coercion  or  by  fraud.  In  the  interpre- 
tation, indeed,  of  these  words,  some  latitude  must  be  allowed.  In 
order  to  come  to  the  conclusion  that  a  will  has  been  obtained  by 
coercion,  it  is  not  necessary  to  establish  that  actual  violence  has 
been  used  or  even  threatened.  The  conduct  of  a  person  in  vig- 
orous health  towards  one  feeble  in  body,  even  though  not  unsound 
in  mind,  may  be  such  as  to  excite  terror  and  make  him  execute  as 
his  will  an  instrument  which,  if  he  had  been  free  from  such  influ- 
ence, he  would  not  have  executed.  Imaginary  terrors  may  have 
been  created  sufficient  to  deprive  him  of  free  agency.  A  will  thus 
made  may  possibly  be  decribed  as  obtained  by  coercion.  So  as  to 
fraud.  If  a  wife,  by  falsehood,  raises  prejudices  in  the  mind  of 
her  husband  against  those  who  would  be  the  natural  objects  of  his 


BURDEN   OF   PROOF.  115 

bounty,  and  by  contrivance  keeps  him  from  intercourse  with  his 
relatives,  to  the  end  that  these  impressions  which  she  knows  he 
had  thus  formed  to  their  disadvantage  may  never  be  removed, 
such  contrivance  may,  perhaps,  be  equivalent  to  positive  fraud, 
and  may  render  invalid  any  will  executed  under  false  impressions 
thus  kept  alive.  It  is,  however,  extremely  difficult  to  state  in  the 
abstract  what  acts  will  constitute  undue  influence  in  questions  of 
this  nature.  It  is  sufficient  to  say,  that  allowing  a  fair  latitude  of 
construction,  they  must  range  themselves  under  one  or  other  of 
these  heads — coercion  or  fraud. 

''One  point,  however,  is  beyond  dispute,  and  that  is,  that  where 
once  it  has  been  proved  that  a  will  has  been  executed  with  due 
solemnities  by  a  person  of  competent  understanding,  and  appar- 
ently a  free  agent,  the  burthen  of  proving  that  it  was  executed 
under  undue  influence,  is  on  the  party  who  alleges  it.  Undue  in- 
fluence cannot  be  presumed,  and,  looking  to  the  evidence  in  the 
present-  case,  I  am  unable  to  discover  evidence  warranting  the 
conclusion  at  which  the  jury  arrived,  supposing  them  to  have  pro- 
ceeded on  the  ground  of  undue  influence 

"  The  most  I  can  find,  if  indeed  that  can  be  found,  is  evidence 
to  show  that  the  act  done  was  consistent  with  the  hypothesis  of 
undue  influence;  that  the  instrument,  though  apparently  the  ex- 
pres>ion  of  his  genuine  will,  might  in  truth  have  been  executed 
only  in  compliance  with  the  threats  or  commands  of  his  wife,  or 
that  he  had  been  led  to  execute  it  by  unfounded  prejudices  art- 
fully in>tillcd  into  or  cherished  in  his  mind  by  his  wife  against 
those  who  would  otherwise  have  been  the  probable  objects  of  his 
bounty. 

"  Hut  in  order  to  set  aside  the  will  of  a  person  of  sound  mind, 
it  is  not  sufficienl  to  show  that  the  circumstances  attending  its  ex- 
ecution an-  consistent  with  the  hypothesis  of  its  having  been  ob- 
tained by  undue  influence.  If  musl  be  shown  that  they  arc  incon- 
sistent with  a  contrary  hypothesis.  Can  it  be  truly  said  thai  there 
i-  any  such  inconsistency  here  I 

•■  The  undue  influence  musl  be  an  influence  exercised  in  relation 
to  the  will  itself,  not  an  influence  in  relation  to  other  matters 
or  transactions,     lint  this  principle  musl  not  bo  carried  too  far. 

Where  a   jury  sees   that    at   and  mar  the  time  when  tlie  will  sought, 

to  hi'  impeached  was  executed,  the  alleged  testator  was3  in  other 


116  UNDUE  INFLUENCE.— FRAUD. 

important  transactions,  so  under  the  influence  of  the  person  ben- 
efited by  the  will,  that  as  to  them  he  was  not  a  free  agent,  but 
was  acting  under  undue  control,  the  circumstances  may  be  such  as 
fairly  to  warrant  the  conclusion,  even  in  the  absence  of  evidence 
bearing  directly  on  the  execution  of  the  will,  that  in  regard  to  that 
also  the  same  undue  influence  was  exercised.  But  even  allowing 
the  utmost  latitude  in  the  application  of  this  principle,  I  feel  com- 
pelled to  say  that  I  do  not  discover  the  proof  of  anything  sufficient 
to  show  undue  influence  in  the  obtaining  of  this  will 

"  On  the  grounds,  therefore,  Which  I  have  pointed  out  [including 
much  not  here  quoted],  I  am  of  opinion  that  the  Lord  Chancellor 
of  Ireland  was  wrong  in  refusing  the  motion  for  a  new  trial.  The 
consequence  is,  that  the  order  of  the  18th  April,  1853,  refusing 
the  new  trial,  must  be  discharged,  and  the  cause  must  be  remitted 
back  to  Ireland,  with  a  declaration  that  a  new  trial  ought  to  have 
been  ordered."  .... 

Orders  and  decree  reversed,  with  declaration  and  remit. 

Lords'  Journals,  13th  March,  1857. 

UNDUE  INFLUENCE.— BURDEN  OF  PROOF. 
In  re  L.iney'8  Will.1 

Surrogate's  Court,  Monroe  County,  New  York,  1890. 
(13  N.  Y.  Supp.  551.) 
Proceedings  to  revoke  probate. 

Adlington,  S. — This  decedent  was  an  illiterate,  intemperate, 
credulous  old  man,  past  eighty  years  of  age.  He  was  feeble  both 
in  body  and  mind,  subject  to  certain  delusions,  and,  while  proba- 
bly of  sound  mind  in  a  strictly  legal  sense,  was  so  feeble  in  will 
and  intellect  as  to  be  easily  influenced  and  controlled  by  other 
people.  During  the  last  half  year  of  his  life  he  had  executed  three 
wills,  the  last  of  which  is  now  the  subject  of  controversy.  By  the 
first  two  wills  he  had  given  to  his  son  and  grandchildren  nearly  all 
his  property,  and  in  making  such  wills  had  shown  much  readiness  to 
heed  the  suggestions  of  outsiders  as  to  the  form  of  his  testament- 
ary dispositions  and  the  appointment  of  executors.     Within  two 

1  Affirmed  by  the  Supreme  Court  (38  State  Rep.  1022),  and  by  the  Court  of 
Appeals  (43  N.  Y.  State  Rep.  961). 


testator's  declarations  before  execution.     117 

weeks  after  the  date  of  the  second  will,  and  while  temporarily  so- 
journing in  the  house  of  a  friend,  the  third  will  is  executed  by  him, 
giving  the  great  bulk  of  his  estate  to  that  friend  and  his  wife.  No 
satisfactory  reason  appears  for  the  sudden  change  of  purpose  in  this 
feeble  old  man.  Upon  the  persons  claiming  to  benefit  by  a  will 
made  under  circumstances  such  as  surrounded  this  transaction  by 
an  aged  and  feeble-minded  man,  the  law  devolves  the  duty  of 
proving  that  the  instrument  was  the  voluntary  outcome  of  the  de- 
cedent's own  wishes,  and  was  not  procured  by  the  improper  influ- 
ence of  the  beneficiaries.  Unless  this  is  satisfactorily  shown,  the 
presumption  arises  that  the  will  is  the  result  of  undue  influence  or 
fraud,  and  it  should  not  be  allowed  to  stand.  Marx  v.  McGlynn, 
88  N.  Y.  357  ;  Mowry  v.  Silber,  2  Bradf.  Sur.  133 ;  Will  of  Claus- 
mann,  24  Wkly.  Dig.  226.  Such  fraud  or  undue  influence  is  not 
usually  open  and  visible  to  the  draughtsman  of  the  will,  or  to  the 
attesting  witnesses,  but  is  commonly  exercised  behind  the  scene. 
Mowry  v.  Silber,  supra,  149.  I  think  the  facts  and  circumstances 
of  this  case  warrant  inference  that  this  will  was  procured  by  the 
undue  influence  of  the  Hurrays,  the  chief  beneficiaries  under  it, 
and  that  the  probate  should  therefore  be  revoked.  There  may  be 
a  decree  accordingly,  on  three  days'  notice. 


UNDUE  INFLUENCE.— TESTATOR'S  DECLARATIONS  BEFORE 

EXECUTION.1 

Dcnison's  Appeal. 

Connecticut  Supreme  Court  of  Errors,  1860. 
(29  Coiui.  399.) 

Hinman,  J. — "We  think  the  Superior  Court  erred  in  rejecting 
the  evidence  of  the  declarations  made  by  the  testator  before  the 

ecution  of  Ins  will,  and  before  there  was  any  claim  that  his 
mind  bad  become  impaired,  that  none  of  his  property  should  ever 
info  the  family  of  Ledyard  Park.  His  will  was  directly  con- 
trary to  what  might  have  been  expected  if  he  was  sincere  in  mak- 
ing the  declaration,  :is  appears  by  the  will  itself,  which,  in  fact, 
disposes  of  the  bulk  of  his  whole  estate  to  Ledyard  Park  and  his 
children.     The  questions  before  the  court  were  whether,  al   the 

■Sec  Waterman  v.  Whitney,  riven  <ni/>. 


118  UNDUE  INFLUENCE. — FRAUD. 

time  the  will  was  made,  the  testator  was  competent  to  make  it, 
ami  whether  by  fraudulent  practices,  operating  upon  an  impaired 
or  enfeebled  mind,  he  was  induced  to  execute  the  instrument  as 
his  will,  when  in  fact  it  was  contrary  to  his  well-settled  convic- 
tions of  what  was  a  just  and  proper  disposition  of  his  estate,  in 
respect  to  the  appellants  and  others  standing  in  the  same 
natural  relation  to  him  as  his  brother  Ledyard,  and  to  one  of 
whom  he  seems  to  have  been  under  some  additional  obligations. 
Declarations  and  acts  of  kindness  and  affection  towards  a  legatee 
are  usual  and  common  circumstances,  often  relied  upon  in  aid  of 
a  will.  They  go  to  show  that  a  legacy,  otherwise  inexplicable 
upon  the  ordinary  motives  of  human  conduct,  is  a  natural  and 
probable  act,  and  therefore  a  reasonable  and  free  one.  Of  course, 
it  would  seem  to  follow  that  contrary  declarations  and  acts  must 
have  a  contrary  effect.  They  tend  to  show  both  imposition  and 
incompetency,  because,  where  a  will  is  made  contrary  to  previously 
declared  intentions,  it  is  such  an  improbable  and  unexpected  act 
as  requires  explanation  before  the  mind  is  satisfied  that  it  was  de- 
liberately and  understandingly  done.  Such  evidence  may  not  al- 
ways be  very  satisfactory,  but  we  think  it  is  admissible,  and  as 
little  liable  to  be  misapplied  as  any  other,  and  sometimes  may  be 
very  satisfactory  and  conclusive,  especially  when  taken  in  connec- 
tion with  other  circumstances.  Should  a  testator  dispose  of  his 
property  to  personal  enemies,  or  entire  strangers,  to  the  exclusion 
of  his  intimate  friends  or  relatives,  it  would  strike  the  common 
sense  of  all  men  as  an  unnatural  act,  and  would  not  be  believed 
to  be  the  free  and  voluntary  act  of  a  sound  mind,  without  a  full 
and  clear  explanation  of  it.  If  a  will  made  in  favor  of  the  attor- 
ney or  medical  attendant  of  a  testator,  when  drawn  up  by  such 
attorney  or  attendant,  requires  explanation  to  remove  the  suspi- 
cion of  imposition  which  otherwise  attaches  to  it,1  it  seems  to  us 
that  a  reason  equally  strong,  though  not  of  the  same  character 
precisely,  throws  at  least  as  much  suspicion  upon  a  will  in  favor 
of  a  personal  enemy,  or  of  one  whom  the  testator  is  shown  to 
have  had  a  settled  determination  to  exclude  from  any  participa- 
tion in  his  property.  Every  unnatural  act  is  some  evidence  of 
imbecility  or  insanity,  as  it  is  only  by  an  accumulation  of  such 

1  See  Index,  "  Attorney." 


testator's  declarations  before  execution.      119 

acts  that  these  conditions  of  the  mind  can  be  established.  Stand- 
ing alone  it  may  be  wholly  inconclusive  in  its  character;  still,  the 
court  must  receive  it  as  evidence,  or  insanity  could  very  seldom 
be  established.  Men  are  not  expected  to  give  their  property  to 
personal  enemies,  nor  to  make  those  of  their  connexions  toward 
whom  they  entertain  strong  feelings  of  dislike  the  principal  ob- 
jects of  their  bounty,  to  the  exclusion,  either  wholly  or  in  part,  of 
those  standing  in  the  same  relation,  and  toward  whom  they  enter- 
tain feelings  of  attachment  growing  out  of  personal  kindnesses. 
Hence,  nothing  is  more  common  than  for  judges,  when  comment- 
ing upon  cases  where  near  relatives  have  been  passed  by,  and  the 
property  of  a  testator  given  to  those  unconnected  with  him  by 
blood,  especially  if  there  was  enmity  between  the  testator  and 
his  relatives  at  all  attributable  to  the  faults  of  the  survivors,  to 
speak  of  them  as  "  conspirators  against  themselves,"  and  to  re- 
mark that,  under  the  state  of  feeling  existing  between  them,  no 
one  would  expect  to  find  in  the  will  of  the  deceased  any  provision 
for  such  survivors. 

We  suppose,  therefore,  that  this  evidence  would  have  been  re- 
ceived by  the  court,  if  the  declaration  offered  to  be  proved  had 
been  made  immediately,  or  but  a  short  time  before  the  will  was 
executed;  but  that,  under  the  circumstances,  it  was  considered 
that  the  proof  related  to  declarations  made  at  too  remote  a  period 
to  be  entitled  to  any  weight.  Hence  the  motion  states  that  they 
were  made  lonu;  before  the  deceased  executed  his  will.  That  such 
declarations  might  be  made  at  so  remote  a  period  as  to  be  entitled 
to  little  if  any  weight,  unless  succeeded  by  other  acts  or  declara- 
tions showing  that  the  state  of  feeling  that  called  them  forth  con- 
tinned  ii]>  to  the  time  the  will  was  executed,  is  undoubtedly  true. 
And  it  is  equally  true  that  they  might  be  made  under  such  cir- 
cumstances as  to  indicate  no  settled  feelings  of  hostility,  or  any 
determination  ever  to  act  upon  them.  And  perhaps,  if  sufficient 
circumstances  appeared  in  the  motion  to  show  that  they  could  not 
have  altered  the  verdict  had  they  been  admitted,  we  mighl  not 
now  feel  called  upon  to  advise  a  new  trial.  Bui  the  mere  circum- 
stance that  they  are  Btated  to  have  been  made  long  before  the  will 
was    executed,  i~,  we    think,  wholly  iusullicieut    for    that    purpose. 

If  verv  remote,  especially  if  succeeded  by  kind  feelings,  the  jury 
would  have  eiven  the  declaration  no  weight,  and  the  court  mighl 


120  UNDUE  INFLUENCE. — FKAUD. 

very  properly  have  so  advised  them.  But  if  it  had  been  succeeded 
by  a  long-continued  state  of  hostile  feelings,  not  shown  to  have 
been  changed  up  to  the  time  the  will  was  made,  time  would  seem 
rather  to  have  added  to  than  to  have  lessened  its  force.  Indeed, 
circumstances  calculated  to  enhance  or  to  lessen  or  destroy  the 
force  of  such  declarations,  quite  too  numerous  to  be  mentioned, 
will  occur  to  every  intelligent  mind.  When  shown  in  evidence, 
in  cases  as  they  arise,  they  would  of  course  be  proper  for  the  con- 
sideration of  the  jury,  in  weighing  testimony  such  as  was  offered 
and  rejected  in  this  case.  And,  in  our  opinion,  the  correct  course 
would  have  been  to  admit  the  declaration  made  by  the  testator, 
and  let  the  jury  weigh  it  in  connection  with  the  length  of  time 
that  had  elapsed  since  it  was  made,  and  any  other  circumstances, 
if  >any  existed,  calculated  to  strengthen  or  weaken  it. 

But  if  it  could  be  admitted  that  the  length  of  time  which  had 
elapsed  since  the  declaration  was  made,  might  be  sufficient  to 
authorize  the  court  to  reject  the  evidence,  so  as  to  prevent  its 
being  heard  by  the  jury,  it  appears  to  us  quite  clear  that  no  such 
length  of  time  is  shown  to  have  elapsed  in  this  case.  The  phrase 
"long  before  "  is  quite  too  indefinite  for  the  purpose.  To  mean 
anything,  as  applied  to  the  subject,  it  would  seem  to  call  for  a 
length  of  time  sufficient  to  allow  the  state  of  enmity  which  existed 
when  the  declaration  was  made  to  subside  and  be  succeeded  by 
feelings  of  an  opposite  character,  and  this  would  most  probably 
depend  on  many  other  circumstances  besides  mere  lapse  of  time. 
If  the  declaration  was  but  the  expression  of  a  sudden  and  slight 
impulse  of  anger,  a  very  short  time  might  be  sufficient  to  show 
that  it  had  subsided,  and  the  provocation  that  called  it  forth  been 
forgotten.  But  the  court  cannot  enter  into  an  inquiry  as  to  the 
attending  circumstances  with  a  view  of  determining  upon  the 
admissibility  of  the  evidence.  This  would  be  but  one  mode  of 
estimating  its  weight  and  importance  under  the  circumstances, 
which  is  the  province  of  the  jury  alone.  We  think,  therefore, 
that  on  the  ground  of  the  exclusion  of  this  evidence  there  must 
be  a  new  trial. 

The  judge,  in  charging  the  jury,  stated  to  them  that  mere 
inequality  in  the  shares  of  the  legatees  standing  in  the  same 
natural  relation  to  the  testator,  was  not,  of  itself,  any  evidence  of 
unsoundness  of  mind  or  want  of  capacity  to  make  a  will.     We  do 


testator's  declarations  before  execution.     121 

not  think  this  can  be  complained  of  under  the  circumstances.  The 
expression,  perhaps,  is  not  technically  correct,  inasmuch  as  it  may 
be  evidence,  and  was  in  fact  evidence  in  this  case,  which  the  judge 
at  the  time  was  commenting  upon ;  but  it  is  clearly  insufficient 
evidence  of  itself  to  authorize  a  court  or  jury  to  set  aside  a  will. 
The  object  of  a  will  is  to  make  a  disposition  of  property  different 
from  what  the  law  makes  of  it.  And  to  say  that  it  may  be  set 
aside  for  a  cause  like  this,  is  little  else  than  to  allow  it  to  be 
defeated  because  it  is  attempted  by  it  to  carry  out  the  lawful 
purpose  for  which  most  wills  are  made. 

Nor  can  the  appellants  complain  of  the  neglect  of  the  judge  to 
charge  the  jury  that  the  will  was  void  on  the  ground  that  the 
bequests  in  it  were  given  upon  conditions  subversive  of  the 
Christian  religion.  If  the  conditions  were  illegal  they  would  be 
void,  and  the  legatees  would  take  the  property  free  from  any  such 
restraints.  We  have  no  occasion,  therefore,  to  examine  the 
character  of  the  conditions  attempted  to  be  imposed  on  the  legatees 
under  this  will  for  the  purpose  of  determining  whether  they  are 
invalid  or  not.  It  is  enough  to  say  of  them,  therefore,  that  while 
they  were  of  so  unusual  and  extraordinary  a  character  as  to  make 
it,  at  least,  questionable  whether  they  were  not  void,  as  subversive 
of  all  religion,  for,  whether  christian  or  pagan,  its  teachers  seem 
by  the  testator  to  be  placed  on  the  same  footing,  it  appears  to  us 
that  the  only  legitimate  use  which  the  appellants  could  make  of 
the  conditions,  is  as  evidence  of  unsoundness  of  mind  arising  from 
the  provisions  of  the  will  itself. 

Open  the  whole  case,  therefore,  we  advise  a  new  trial,  on  the 
ground  only  of  the  rejection  of  the  testimony  offered  to  be  proved 
by  the  witness  Chapman. 

In  this  opinion  the  other  judges  concur. 

New  trial  advised. 

UNDUE    INFLUENCE.—  TEST  A  To  I  t'S     DECLARATIONS    BEFORE 

EXECUTION. 

Gardner  v.  Frieze  ct  al. 

Rhode  Island  Sii-klmk  Court,  1889. 
(16  R.  I.  640.) 

Dv/rfee^ 0.  J. — This  i-  an  appeal  from  a  decree  of  the  munici- 
pal court  of  the  city  "I   Providence,  admitting  to  probate  the 


122  UNDUE  INFLUENCE. — FRAUD. 

-will  of  Phoebe  L.  Gardner.  The  will  was  executed  August  3, 
\.n.  1SS6,  when  the  testatrix  was  somewhat  over  eighty  years 
old.  It  gives  the  larger  part  of  her  property  to  three  daughters, 
and  gives  to  her  son,  Walter  S.  Gardner,  the  appellant,  only  a 
trifling  legacy.  The  reasons  of  appeal  alleged  are  that  the  will 
was  procured  by  fraud,  deceit,  and  undue  influence.  On  trial  in 
this  court  the  probate  was  opposed  on  those  grounds.  In  sup- 
port of  the  will  the  court  admitted,  subject  to  exception,  testi- 
mony to  the  following  effect,  to  wit:  That  the  testatrix  had  told 
her  counsel,  before  the  will  was  executed,  that  her  said  son  an- 
noyed her  by  his  importunities  for  money ;  that  he  had  to  pay 
her  money  due  to  her  for  a  dower  right,  and  had  several  times 
importuned  her  to  forgive  the  payments  ;  that  he  had  had  his 
share  from  his  father's  estate,  and  she  would  give  him  nothing ; 
that  she  made  these  statements  at  different  times  during  a  number 
of  years  before  the  will  was  made,  said  counsel  having  drawn  one 
or  more  earlier  wills ;  that  she  made  similar  statements  to  the 
counsel's  partner,  and  also  said  to  him  that  she  always  intended  to 
give  her  property  to  her  daughters,  said  statement  having  been 
made  to  said  partner  some  years  before  the  will  in  controversy 
was  executed.  The  jury  returned  a  verdict  sustaining  the  will. 
The  case  is  before  us  for  alleged  error  committed  by  admitting 
said  testimony. 

We  do  not  think  the  court  erred  in  admitting  it.  Judge  Red- 
field,  in  his  treatise  on  the  Law  of  Wills,  says  :  "  It  is  every-day 
practice,  where  probate  is  resisted  on  the  ground  of  fraud,  undue 
influence,  or  surprise,  to  admit  the  declarations  of  the  testator  pre- 
viously made  as  to  his  testamentary  intentions;  and  that,  when 
the  will  corresponds  to  the  declarations,  it  excites  much  less 
apprehension  of  improper  practices  than  when  it  differs  from 
them."  1  Redf.  Wills,  567,  568.  Such,  so  far  as  we  know,  has 
been  the  practice  in  this  State.  [The  weight  of  the  evidence 
offered  on  this  point  is,  of  course,  another  question,  arising  anew 
in  each  case.  Kane  v.  Brown  (R.  I.),  20  Atl.  R.  10.]  It  seems  to 
us  that  no  evidence  can  be  more  legitimate  in  disproof  of  fraud  or 
undue  influence,  especially  if  the  declarations  have  been  repeated 
from  time  to  time  during  a  period  of  years  before  the  making  of 
the  will  and  down  to  the  making.  The  practice  is  well  supported 
by  authority.    In  Neel  v.  Potter,  40  Pa.  St.  483,  the  will  gave  the 


testator's  declarations  after  execution.       123 

testator's  real  estate  to  bis  brother,  Samuel  Neel,  and  bis  nephew, 
James  Neel.  It  was  contested  on  the  ground  of  alleged  undue 
influence  by  members  of  the  family  of  the  devisees.  Evidence 
was  admitted  on  the  part  of  the  devisees  that  the  testator  had  de- 
clared at  intervals  during  a  period  of  many  years,  that  he  intended 
to  leave  his  farm  k*  in  the  name  of  Neel."  The  evidence  was  de- 
cided by  the  Supreme  Court  of  Pennsylvania  to  have  been  rightly 
admitted.  The  court  said  :  "  It  would  strongly  rebut  the  idea  of 
any  such  influence  on  the  mind  of  the  testator  when  making  his 
will,  if  it  were  shown  that  he  made  it  in  accordance  with  a  lone- 
cherished  purpose."  See,  also,  Starrett  v.  Douglass,  2  Yates  46, 
51;  Irish  v.  Smith,  8  Serg.  &  R  573.  In  Roberts  v.  Trawick, 
17  Ala.  55,  the  will  was  impeached  for  fraud  or  undue  influence, 
and  the  court  held  that  declarations  made  by  the  testator  ten  years 
and  repeated  by  him  five  years  before  its  execution,  going  to  >how 
a  fixed  and  settled  purpose  to  make  such  a  will,  were  admissible 
in  evidence  to  rebut  the  charge  of  fraud  or  over-persuasion.  And 
in  Pancoast  v.  Graham,  15  N.  J.  Eq.  294,  where  the  ground  of 
contest  was  insanity,  the  court  held  that  it  was  confirmatory  of  the 
sanity  of  the  testator  that  his  will  was  reasonable,  and  corre- 
sponded with  his  repeated  declarations.  See,  also,  Allen  v.  Pub- 
lic Administrator.  1  Bradf.  Sur. 311 ;  Patton  v.  Allison,  7Huin]>h. 
.  So,  evidence  of  declarations  repugnant  to  the  will  have  been 
admitted  to  impeach  it  for  fraud  and  undue  influence.  William- 
son v.  Nabers,  14  (;.-i.  2S»;,  308  ;  1  >eniH>ns  Appeal, 29  Conn. 399; 
Bughes  v.  Hughes'  Ex'r,  31  Ala.  519.  If  admissible  to  impeach, 
such  evident,  must,  of  course,  be  admissible  to  support  the  will. 
There  may  be  a  f<-\v  contrary  decisions,  but  we  think  that  much 
the  more  numerous  decisions  and  the  better  reasons  .-auction  the 
admissibility  of  the  testimony.     Petition  dismissed. 

UNDUE     INFLUENCE.  —  TESTATOR'S     DECLARATIONS    AFTER 

EXECUTION.— LEGATEE'S  ADMISSIONS. 

Shatter  v*.  Bumstead  A  others. 

M\--\<  Husi  1 1-  >i  pr]  mi    Judicial  Court,  1868. 
0  I  Mass.   112.) 
Will  of  Mi--  Bumstead.     Probate  allowed.     Appeal. 
Colt,  J.     Several   questions  arising   upon    the   admission  and 


follow!)  <m  admissions  and  declarations. 


124  UNDUE  INFLUENCE.— FRAUD. 

rejection  of  evidence  at  the  trial  are  presented  by  this  report. 
One  of  the  most  important,  whether  we  regard  its  practical  conse- 
quences, or  the  apparent,  and  to  some  extent  real,  conflict  of 
authority,  relates  to  the  admissibility  of  the  declarations  of  the 
testatrix  made  after  the  execution  of  the  will.  Such  declarations 
were  offered  to  sustain  the  allegations  of  fraud  and  undue  influ- 
ence, and  ignorance  of  its  contents,  and  were  excluded. 

That  the  instrument  which  contains  the  testamentary  disposi- 
tion of  a  competent  person,  executed  freely  and  with  all  requisite 
legal  formalities,  must  stand  as  the  only  evidence  of  such  disposal, 
is  generally  conceded.  Such  a  will  is  not  to  be  controlled  in  its 
plain  meaning  by  evidence  of  verbal  statements  inconsistent  with 
it ;  nor  impaired  in  its  validity  and  effect  by  afterthoughts  or 
changes  in  the  wishes  or  purposes  of  the  maker,  however  dis- 
tinctly asserted.  It  is  to  be  revoked  only  by  some  formal  written 
instrument,  some  intentional  act  of  destruction  or  cancellation,  or 
such  change  of  circumstances  as  amounts  in  law  to  a  revocation. 

Any  invasion  of  this  rule  opens  the  way  to  fraud  and  perjury  ; 
promotes  controversy ;  destroys  to  a  greater  or  less  degree  that 
security  which  should  be  afforded  to  the  exercise  of  the  power 
to  control  the  succession  to  one's  property  after  death.  But  the 
rule  assumes  that  the  will  sought  to  be  affected  has  once  had  a 
valid  existence.  It  is  always  liable  to  be  impeached  by  any  com- 
petent evidence  that  it  was  never  executed  with  the  required  for- 
mality, was  not  the  act  of  one  possessed  of  testamentary  capacity, 
or  was  obtained  by  such  fraud  and  undue  influence  as  to  subvert 
the  real  intentions  and  will  of  the  maker.  The  declarations  of 
the  testator  accompanying  the  act  must  always  be  resorted  to  as 
the  most  satisfactory  evidence  to  sustain  or  defeat  the  will  when- 
ever this  issue  is  presented.  So  it  is  uniformly  held  that  the  pre- 
vious declarations  of  the  testator,  offered  to  prove  the  mental 
facts  involved,  are  competent.  Intention,  purpose,  mental  pecu- 
liarity and  condition,  are  mainly  ascertainable  through  the  medium 
afforded  by  the  power  of  language.  Statements  and  declarations, 
when  the  state  of  the  mind  is  the  fact  to  be  shown,  are  therefore 
received  as  mental  acts  or  conduct.  The  truth  or  falsity  of  the 
statement  is  of  no  consequence.  As  a  narration,  it  is  not  received 
as  evidence  of  the  fact  stated.  It  is  only  to  be  used  as  showing 
what  manner  of  man  he  is  who  makes  it.     If,  therefore,  the  state- 


testator's  declarations  after  execution.       125 

ment  or  declaration  offered  has  a  tendency  to  prove  a  condition 
not  in  its  nature  temporary  and  transient,  then,  by  the  aid  of  the 
recognized  rule  that  what  is  once  proved  to  exist  must  be  pre- 
sumed to  continue  till  the  contrary  be  shown,  the  declaration, 
though  prior  in  time  to  the  act  the  validity  of  which  is  questioned, 
is  admissible.  Its  weight  will  depend  upon  its  significance  and 
proximity.  It  may  be  so  remote  in  point  of  time,  or  so  altered 
in  its  import  by  subsequent  changes  in  the  circumstances  of  the 
maker,  as  to  be  wholly  immaterial,  and  wisely  to  be  rejected  by 
the  judge. 

Upon  the  question  of  capacity  to  make  a  will,  evidence  of  this 
description  is  constantly  received ;  and  when  the  issue  is  one  of 
fraud  and  undue  influence  it  is  equally  material.  The  requisite 
mental  qualification  to  make  a  will  might  exist,  and  be  entirely 
consistent  with  such  a  degree  of  weakness,  or  such  peculiarity,  as 
would  make  the  party  the  easy  victim  of  fraud  and  improper 
influence. 

The  evidence  is  here  offered  only  to  establish  the  allegations  of 
ignorance  of  the  will,  and  of  fraud  and  undue  influence.  The 
verdict  of  the  jury  at  a  former  trial  having  established,  beyond 
controversy  now,  that  the  will  was  made  by  one  in  possession  of 
the  requisite  testamentary  capacity,  its  admissibility  is  to  be  con- 
sidered only  upon  the  remaining  issue. 

To  establish  the  charge  of  fraud  and  undue  influence,  two  points 
must  be  sustained  ;  first,  the  fact  of  the  deception  practised,  or  the 
influence  exercised  ;  and,  next,  that  this  fraud  and  influence  were 
effectual  in  producing  the  alleged  result,  misleading  or  over- 
coming the  party  in  this  particular  act.  The  evidence  under  the 
first  branch  embraces  all  those  exterior  acts  and  declarations  of 
others  used  and  contriv<  d  to  defraud  or  control  the  testator  ;  and 
under  the  last  includes  all  that  may  tend  to  show  that  the  testator 
was  of  that  peculiar  mental  structure,  was  possessed  of  those 
intrinsic  or  accidental  qualities,  was  subject  to  such  passion  or 
prejudice,  of  such  perverse  or  feeble  will,  or  so  mentally  infirm  in 
any  respect,  as  to  render  it  probable  that  the  efforts  used  were 
Successful  in  producing  in  the  will  olTered  the  combined  result. 
The  purpose  of  the  evidence  in  this  direction  is  to  establish  that 
liability  of  the  testator  t<>  be  easily  affected  by  fraud  «>r  undue 
influence,  which  constitutes  the  necessary  counterpart  and  com- 


126  UNDUE  INFLUENCE. — FRAUD. 

plement  of  the  other  facts  to  be  proved.  Without  such  proof,  the 
issue  can  seldom,  if  ever,  be  maintained.  It  is  said  to  be  doubtful 
whether  the  existence  and  exercise  of  undue  influence  does  not 
necessarily  presuppose  weakness  of  mind,  and  whether  the  acts  of 
one  who  was  in  all  respects  sound  can  beset  aside  on  that  ground 
in  the  absence  of  proof  of  fraud  or  imposition.  And  it  is  certain 
that,  however  ingenious  the  fraud  or  coercive  the  influence  may 
be,  it  is  of  no  consequence,  if  there  was  intelligence  enough  to 
detect  and  strength  enough  to  resist  them. 

The  inquiry  is  of  course  directed  to  the  condition  at  the  date 
of  the  execution  of  the  will ;  but  the  entire  moral  and  intellectual 
development  of  the  testator  at  that  time  is  more  or  less  involved  ; 
not  alone  those  substantive  and  inherent  qualities  which  enter 
info  the  constitution  of  the  man,  but  those  less  permanent  features 
which  may  be  said  to  belong  to  and  spring  from  the  affections  and 
emotions,  as  well  as  those  morbid  developments  which  have  their 
origin  in  some  physical  disturbance.  All  that  is  peculiar  in 
temperament  or  modes  of  thought,  the  idiosyncrasies  of  the  man, 
so  far  as  susceptibility  is  thereby  shown,  present  proper  considera- 
tions for  the  jury.  They  must  be  satisfied,  by  a  comparison  of 
the  will,  in  all  its  provisions,  and  under  all  the  exterior  influences 
which  were  brought  to  bear  upon  its  execution,  with  the  maker 
of  it  as  he  then  was,  that  such  a  will  could  not  be  the  result  of 
the  free  and  uncontrolled  action  of  such  a  man  so  operated  upon, 
before  they  can  by  their  verdict  invalidate  it. 

As  before  stated,  the  previous  conduct  and  declarations  are 
admissible;  and  so,  by  the  weight  of  authority  and  upon  prin- 
ciple, are  subsequent  declarations,  when  they  denote  the  mental 
fact  to  be  proved.  For,  by  common  observation  and  experience, 
the  existence  of  many  forms  of  mental  development,  especially 
that  of  weakness  in  those  faculties  which  are  an  essential  part  of 
the  mind  itself,  when  once  proved,  imply  that  the  infirmity  must 
have  existed  for  some  considerable  time.  The  inference  is  quite 
as  conclusive  that  such  condition  must  have  had  a  gradual  and 
progressive  development,  requiring  antecedent  lapse  of  time,  as 
that  it  will  continue,  when  once  proved,  for  any  considerable 
period  thereafter.  The  decay  and  loss  of  vigor  which  often 
accompanies  old  age  furnishes  the  most  common  illustration  of 
this.     It  is  difficult  to  say  that  declarations  offered  to  establish 


testator's  declarations  after  execution.       127 

mental  facts  of  this  description  are  of  equal  weight,  whether 
occurring  before  or  after  the  act  in  question.  But,  if  they  are 
equally  significant  and  no  more  remote  in  point  of  time,  they  are 
equally  competent,  and  may  he  quite  as  influential  with  the  jury. 

The  difficulty  in  the  admission  of  these  subsequent  statements 
of  the  testator  has  been  that,  while  competent  for  the  purpose 
above  indicated,  they  are  not,  by  the  better  reason  and  the  most 
authoritative  decisions,  admissible  to  establish  elements  of  the  is- 
sue. When  used  for  such  purpose  they  are  mere  hearsay,  which, 
by  reason  of  the  death  of  the  party  whose  statements  are  so  of- 
fered, can  never  be  explained  or  contradicted  by  him.  Obtained, 
it  may  be,  by  deception  or  persuasion,  and  always  liable  to  the  in- 
firmities of  human  recollection,  their  admission  for  such  purposes 
would  go  far  to  destroy  the  security  which  it  is  essential  to  pre- 
serve. The  declaration  is  not  to  be  wholly  rejected,  however,  if 
admissible  on  other  grounds;  and  it  must  be  left  to  the  judge 
carefully  to  point  out  how  far  it  is  to  be  rejected  or  received  as 
evidence  by  the  jury. 

Ordinarily  we  should  expect  more  or  less  evidence  of  the  prior 
existence  of  those  peculiarities  which  the  subsequent  declarations 
give  evidence  of;  and  in  the  reported  cases  this  will  generally  be 
found  to  be  so.  It  is  not  necessary  to  decide  whether,  in  the  en- 
tire absence  of  such  evidence,  subsequent  declarations  would  ever 
be  competent.  Where  a  foundation  is  laid  by  evidence  tending 
to  show  a  previous  state  of  mind,  and  its  continued  existence  past 
the  time  of  the  execution  of  the  will  is  attempted  to  be  proved  by 
subsequent  conduct  and  declarations,  such  declarations  are  admis- 
sible, provided  they  are  significant  of  a  condition  sufficiently  per- 
manent, and  are  made  so  near  the  time  as  to  afford  a  reasonable 
inference  that  such  was  the  state  at  the  time  in  question. 

The  doctrines  thus  stated  are  maintained  by  the  current  of  Eng- 
lish and  American  authority. 

In  Provis  v.  Reed,  .">  Bing.  435,  the  statements  of  the  testator 
which  were  offered  were  regarded  bythe  court  as  offered  to  prove 
specific  acta  <>!'  fraud  and  improper  influence.  The  distinction 
here  suggested  does  not  Beetn  to  have  beeD  required  in  the  case,  and 
such  statements  were  emphatically  declared  inadmissible  by  Best,  . 
C.  J.,  as  rendering  useless  the  precaution  of  making  a  will.  The 
same  doctrine  is  recognized,  and  the  principle  discussed,  in  Mar- 


138  UNDUE  INFLUENCE. — FRAUD. 

ston  v.  Roe,  8  Ad.  &  El.  14,  -where  Tindal,  C.  J.,  goes  somewhat 
fully  into  the  matter,  although  the  precise  question  was  upon  the 
revocation  of  the  will. 

In  New  York,  in  the  case  of  Jackson  v.  Kniffen,  2  Johns.  31, 
the  point  was  raised  and  decided  ;  and  the  statement  of  the  testa- 
tor that  he  had  executed  the  will  by  force  and  for  fear  of  being 
murdered,  was  rejected.  The  distinction  taken  in  the  more  re- 
cent cases  between  such  proof  of  exterior  facts  and  such  proof  of 
mental  status  is  not  alluded  to.  And  Spencer,  J.,  in  his  dissent- 
ing opinion,  favors  the  admission  of  the  declarations,  on  the  ground 
that  they  were  the  declarations  of  the  sole  party  in  interest  at  the 
time,  because  no  one  else  could  have  an  interest  in  a  will,  living 
the  testator.  The  whole  matter  is  discussed  more  fully,  and  the 
distinctions  accurately  pointed  out,  in  Waterman  v.  Whitney,  1 
Kernan  157  ;  (11  N.  Y.  157 ;  given  ante).  Subsequent  declara- 
tions inconsistent  with  the  will,  in  connection  with  other  evidence 
tending  to  prove  want  of  mental  capacity,  are  held  by  Selden,  J., 
and  a  majority  of  the  court,  to  be  competent,  upon  a  full  review 
of  the  decisions. 

In  Connecticut  the  same  rule  prevails  arid  was  stated  in  Corn- 
stock  v.  Hadlyme  Ecclesiastical  Society,  8  Conn.  254. 

In  Vermont,  in  the  case  of  Robinson  v.  Hutchinson,  26  Verm. 
47,  where  the  question  is  fully  considered,  Isham,  J.,  says :  "  We  do 
not  perceive  any  serious  objection  to  the  admission  of  this  testi- 
mony, under  that  limitation,  when  the  declarations  were  made  so 
near  the  time  of  the  execution  of  the  will  that  a  reasonable  con- 
clusion may  be  drawn  as  to  the  state  of  mind  of  the  testatrix  at 
the  time  the  will  was  executed.  Weakness  of  mind  arising  from 
advanced  age,  in  connection  with  causes  suggested  in  this  case,  is 
progressive  and  permanent  in  character.  It  exists  in  the  mind  it- 
self, and  therefore  it  is  that  weakness  of  mind  at  the  time  of  mak- 
ing the  will  may  be  inferred  from  weakness  subsequent,  as  much 
so  as  imbecility  of  mind  under  similar  circumstances." 

In  Moritz  v.  Brough,  16  S.  &  R.  402,  the  Supreme  Court  of 
Pennsylvania  held  declarations  admissible  to  show  mental  condi- 
tion.    See  also  McTaggart  v.  Thompson,  14  Pa.  St.  149,  154. 

In  the  recent  case  of  Boy  Ian  v.  Meeker,  4  Dutcher  274,  the 
whole  subject  is  discussed.  The  issues  there  were,  incapacity, 
forgery  of  the  will,  fraud  practised  by  inducing  signature  to  a 


testator's  declaratioxs  after  execution.       129 

paper  without  knowledge  that  it  was  a  will.  The  court  say  that 
upon  a  review  of  the  case  no  doubt  can  be  entertained  of  the  tes- 
tator's capacity.  The  contestants  relied  on  the  conduct  and  dec- 
larations of  the  testator  to  show  that  he  never  knew  afterwards 
of  the  existence  of  the  will,  and  therefore  could  not  have  know- 
ingly executed  the  paper.  It  appears  that  the  declarations  were 
offered  on  the  broad  ground'  that,  even  if  the  testator  had  testa- 
mentary capacity,  yet  he  never  executed  the  will,  because  of  his 
declared  ignorance  of  any  such  paper.  In  the  discussion  of  the 
case,  the  court  seem  to  regard  ignorance  of  a  fact  existing  at  any 
particular  time  as  not  evidence  of  a  state  of  mind  in  any  sense 
affecting  its  capacity.  But,  however  this  may  be,  the  whole  case 
clearly  recognizes  the  admissibility  of  subsequent  declarations 
to  prove  mental  condition,  and  is  in  harmony  with  the  main  cur- 
rent of  authority.  The  declarations  were  held  incompetent  in 
that  case,  but  it  was  upon  the  ground  that  the  evidence  was  of- 
fered to  support  the  act  of  fraud  charged,  and  had  no  tendency 
to  establish  mental  condition. 

Two  cases  in  North  Carolina  are  apparently  in  conflict  with 
these  authorities — Reel  v.  Reel,  1  Hawks  248  ;  Howell  v.  Bar- 
den,  3  Dev.  442.  In  the  first  of  these  the  court  follow,  and  ap- 
prove -of,  the  dissenting  opinion  of  Spencer,  J.,  in  Jackson  v. 
Kniffen,  supra;  and,  in  the  last  case,  the  court,  by  Ruffin,  J.,  de- 
clare themselves  bound  by  the  former  decision.  It  does  not  ap- 
pear what  were  the  precise  declarations  in  this  case ;  but  in  Reel 
v.  Reel,  in  connection  with  the  evidence  that  the  mind  of  the  tes- 
tator had  been  greatly  impaired  by  previous  habits  of  intoxication, 
and  had  been  weak  from  his  youth,  the  declarations  admitted  may 
be  held  competent,  without  overruling  Jackson  v.  Kniffen.  See 
also  Cawthorn  v.  Ilaynes,  24  Mo.  236;  3  Lead.  Cas.  in  Eq.  (3d 
Am.  ed.)  503,  note;   1  Redfield  on  Wills,  551-501. 

This  discussion,  though  thus  prolonged,  may  not  be  dismissed 
without  presenting  another  view  upon  which  the  evidence  under 
consideration    may  be   competent.      A    will    made  when    fraud  or 

compulsion  is  used  may  nevertheless  bo  shown  to  bo  the  free  act 
of  the  party,  by  proof  of  statements  in  which  the  will  and  its  pro- 
tons are  approved,  made  when  relieved  of  any  improper  influ- 
ence or  coercion.  It,  is  always  open  to  inquiry  whether  undue  in- 
duence  in  any  case  operated  to  produce  the  will  ;  and,  as  the  will 


130  UNDUE  INFLUENCE. — FRAUD. 

is  ambulatory  during  life,  the  conduct  and  declarations  of  the  tes- 
tator upon  that  point  are  entitled  to  some  weight.  Indeed,  the 
feet  alone  that  the  will,  executed  with  due  solemnity  by  a  compe- 
tent person,  is  suffered  to  remain  unrevoked  for  any  considerable 
time  after  the  alleged  causes  have  ceased  to  operate,  is  evidence 
that  it  was  fairly  executed ;  to  meet  which,  to  some  extent  at 
least,  statements  of  dissatisfaction  with  or  want  of  knowledge  of 
its  contents  are  worthy  of  consideration  and  clearly  competent, 
however  Blight  their  influence  in  overcoming  the  fact  that  there  is 
no  revocation. 

All  this  evidence,  under  whatever  view  it  is  admitted,  is  com- 
petent only  and  always  to  establish  the  influence  and  effect  of  the 
external  acts  upon  the  testator  himself;  never  to  prove  the  actual 
fact  of  fraud  or  improper  influence  in  another. 

Coming  now  to  the  application  of  these  rules  to  the  case  here 
presented,  we  cannot  avoid  the  conclusion  that  the  report  shows 
that  evidence  of  the  subsequent  declarations  of  the  testatrix  to 
the  effect  that  the  will  so  made  was  contrary  to  her  real  inten- 
tions, or  that  she  was  ignorant  of  its  contents,  should  have  been 
admitted.  The  character  and  habits  of  the  testatrix  in  her  better 
days,  the  whole  of  her  later  life,  with  her  expressed  purposes  and 
wishes  up  to  the  time  of  the  will,  were  exhibited  in  evidence. 
With  a  considerable  degree  of  physical  weakness,  that  loss  of 
vigor  and  activity  in  the  mind,  which  indicates  in  persons  of  her 
habits  and  years  the  increasing  infirmities  and  decay  of  old  age, 
was  shown  to  exist  at  and  before  the  date  of  the  will,  for  the  pur- 
pose of  increasing  the  probability  that  she  was  the  victim  of  the 
improper  designs  of  others. 

The  precise  statements  are  not  reported,  nor  does  it  appear  at 
what  precise  time  they  were  made,  but  they  were  offered  to  show 
either  ignorance  of  the  contents  of  the  will,  or  that  they  were 
contrary  to  her  real  intentions,  and  that  the  will  was  improp- 
erly obtained  by  the  fraud  and  undue  influence  of  the  executors 
named. 

As  we  have  already  seen,  this  evidence  was  not  competent  as  a 
declaration  or  narrative  to  show  the  fact  of  fraud  or  undue  influ- 
ence at  a  previous  period.  But  it  was  admissible  not  only  to  show 
retention  or  loss  of  memory,  tenacity  or  vacillation  of  purpose 
existing  at  the  date  of  the  will,  but  also  in  proof  of  long-cherished 


testator's  declarations  after  execution.       131 

purposes,  settled  convictions,  deeply-rooted  feelings,  opinions, 
affections,  or  prejudices,  or  other  intrinsic  or  enduring  peculiar- 
ities of  mind,  inconsistent  with  the  dispositions  made  in  the  in- 
strument attempted  to  be  set  up  as  the  formal  and  deliberate 
expression  of  the  testator's  will ;  as  well  as  to  rebut  any  inference 
arising  from  the  non-revocation  of  the  instrument.  They  were 
not  rejected  as  too  remote  in  point  of  time,  or  as  having  no  tend- 
ency in  their  character  to  sustain  the  fact  claimed  to  exist. 

In  connection  with  the  evidence  thus  offered  and  rejected  the 
contestants  offered  also  the  declarations  and  conduct  of  Hayden 
and  Shailer,  named  executors,  subsequent  to  the  date  of  the  will. 
And  this  brings  us  to  another  important  question  in  the  case. 
The  evidence,  for  the  purpose  for  which  it  was  offered,  was,  we 
think,  properly  excluded.  It  was  not  proposed  thereby  to  con- 
tradict their  testimony.  The  admissions  of  a  party  to  the  record 
against  his  interest  are,  as  a  general  rule,  competent  against  him; 
and  this  rule  applies  to  all  cases  where  there  is  an  interest  in  the 
suit,  although  other  joint  parties  in  interest  may  be  injuriously 
affected.  But  it  does  not  apply  to  cases  where  there  are  other 
parties  to  be  affected  who  have  not  a  joint  interest,  or  do  not 
stand  in  some  relation  of  privity  to  the  party  whose  admission  is 
relied  upon.  A  mere  community  of  interest  is  not  sufficient. 
Devisees  or  legatees  have  not  that  joint  interest  in  the  will  which 
will  make  the  admissions  of  one,  though  he  be  a  party  appellant 
or  appellee  from  the  decree  of  the  probate  court  allowing  the 
will,  admissible  against  the  other  legatees.  In  modern  practice, 
at  law  even,  the  admissions  of  a  party  to  the  record  who  has  no 
interest  in  the  matter  will  not  be  permitted  to  be  given  in  evi- 
dence to  the  prejudice  of  the  real  party  in  interest. 

In  tin-  ease,  it  does  not  appear  at  what  time  after  the  date  of 
the  will  these  declarations  were  made,  whether  before  or  after  the 
death  of  the  testatrix,  or  before  or  after  tin'  offer  of  the  will    for 

probate;  and  perhaps  it  is  not  material.     They  stand  upon  the 

Bame   ground    with    statements    made   at    any    time  since  the  date 

of  the  will,  by  any  other  devisee  or  legatee  named  in  the  will,  or 

heir  at  law  or  legatee  under  the  former  will  of  Is.M,  whose  inter- 
ests are  affected  and  who  is  a  party  to  this  record.  Before  the 
death  of  the  testatrix  the  interesl  of  .ill  these  parties  in  a  will,  at  any 

time  to  be  revoked,  was  not  such  a  direct  interest  as  should  render 


132  UNDUE  INFLUENCE.— FRAUD. 

their  admissions  competent  against  other  parties.  The  separate 
ad  missions  of  each,  made  after  the  act,  that  the  will  was  procured 
by  their  joint  acts  of  fraud  or  undue  influence,  cannot  be  permitted 
to  prejudice  the  other.  Such  statements  are  only  admissible 
when  they  are  made  during  the  prosecution  of  the  joint  enterprise. 
Admitting  for  the  present  that  any  interest  in  a  will  obtained  by 
undue  influence  cannot  be  held  by  third  parties,  however  inno- 
cent of  the  fraud,  and  that  the  gift  must  be  taken  tainted  with 
the  fraud  of  the  person  procuring  it,  still  it  by  no  means  follows 
that  the  interest  of  the  other  innocent  legatees  should  be  liable 
to  be  divested  by  the  subsequent  statements  of  the  parties  pro- 
curing the  will.  Such  a  rule  would  violate  all  sense  of  right,  and 
is  not  sustained  by  the  decisions. 

The  principal  case,  most  often  cited  in  support  of  the  doctrine 
that  such  admissions  are  competent,  is  Atkins  v.  Sanger,  1  Pick. 
192.  The  will  was  contested  on  the  ground  that  the  testatrix  was 
not  of  sound  miwd  and  had  been  unduly  practised  upon.  The 
declarations  of  one  of  the  executors  named,  who  were  the  prin- 
cipal legatees,  were  offered  to  show  the  circumstances  attending 
the  making  of  the  will.  Their  admissibility  was  expressly  urged 
on  the  ground  that  the  parties  to  the  record  could  not,  as  the 
law  then  was,  be  called  as  witnesses,  and  there  was  no  way  of 
proving  the  facts.  The  chief-justice,  after  a  short  consultation 
with  his  brethren,  said  the  court  were  inclined  to  admit  the  dec- 
larations as  to  facts  which  took  place  at  the  making  of  the  will, 
but  added  that  the  decision  did  not  interfere  with  Phelps  v.  Hart- 
well,  1  Mass.  72.  This  is  the  whole  of  the  case.  It  is  to  be  noted 
that  the  case  was  heard  before  the  full  court  without  a  jury. 
The  rule  may  have  been  less  carefully  laid  down  than  it  would 
have  been  if  the  question  had  arisen  on  the  admissibility  of  the 
evidence  in  a  jury  trial.  Under  the  present  law  of  this  Common- 
wealth making  parties  to  the  record  witnesses,  illustrated  in  this 
very  case  by  calling  the  parties  whose  admissions  were  offered  and 
subjecting  them  to  the  cross-examination  of  the  contestants,  we 
cannot  think  the  rule  now  contended  for  would  have  been  adopted, 
as  it  seems  to  have  been  in  Atkins  v.  Sanger. 

In  Ware  v.  Ware,  8  Greenl.  42,  which  was  an  appeal  from  the 
decree  allowing  probate  of  John  Ware's  will,  the  appellee  was 
permitted  to  prove  that  Abel  Ware,  the  only  appellant,  said,  two 


testator's  declarations  after  execution.       133 

or  three  weeks  before  the  death  of  the  testator,  that  he  had  his 
senses.  This  case,  so  far  as  it  permits  the  opinions  of  a  party  on 
the  question  of  sanity  to  be  put  in  evidence  against  him,  is  in 
conflict  with  Phelps  v.  Hartwell,  supra ;  but  on  a  closer  exam- 
ination it  seems  to  be  in  harmony  with  the  law  as  here  stated.  It 
does  not  appear  that  the  appellant  was  not  the  sole  party  in  in- 
terest. The  fact  that  he  was  alone  interested  is  to  be  inferred  ; 
f <  >r  JlelUn,  J.,  in  reference  to  this  point,  says  that  by  law  the 
confessions  of  a  party  may  always  be  given  against  him  and  his 
interest,  but  not  thereby  to  defeat  or  impair  the  rights  of  others 
claiming  under  him. 

Upon  principle,  and  by  the  weight  of  decided  cases,  we  think 
there  was  no  error  at  the  trial  in  the  present  case  in  this  respect. 
Clark  v.  Morrison,  25  Penn.  State  453 ;  Titlow  v.  Titlow,  54 
Penn.  State  222 ;  Osgood  v.  Manhattan  Co.,  3  Cowen  612 ;  Dan 
v.  Brown,  4  Cowen  492 ;  Hauberger  v.  Koot,  6  W.  &  S.  431  ; 
Thompson  v.  Thompson,  13  Ohio  State  358 ;  Blakey  v.  Blakey, 
33  Ala.  616. 

The  conduct  of  Shailer  and  Playden  in  relation  to  the  property 
and  business  of  the  testatrix  stands  on  the  same  footing  with 
their  admissions.  It  had  no  legal  tendency  to  establish  the  issue 
on  the  part  of  the  contestants.  The  act  could  not  be  invalidated, 
so  far  as  others  at  least  were  concerned,  by  their  subsequent  con- 
duct. The  codicil  of  1857,  if  freely  and  intelligently  executed, 
would  of  itself  fully  establish  the  will  of  1853.  But  the  conduct 
of  either  in  procuring  it  was  clearly  incompetent  on  these  issues. 
All  the  other  specific  subsequent  conduct  offered  seems  to  have 
(•'insisted  of  independent  and  disconnected  acts,  not  in  any  way 
related  to  the  making  of  the  will  of  1853.  Any  subsequent  acts 
of  theirs,  or  of  any  one  else,  by  which  the  testatrix  was  in  any 
wav  prevented  from  revoking  or  making  any  change  in  her  will 
if  she  desired,  or  by  which  her  relatives  and  friends  were  pre- 
vented or  debarred  in  any  way  from  free  access  to  and  communi- 
cation with  her,  were  expressly  allowed  to  be  shown.  The  deed 
of  ls.">7  to  Bayden,  the  consideration  for  which  was  inquired  of 

in  hifl  Cr088  '      niiiiiation,  was  properly  excluded  as  not  tending  to 

contradicl  his  testimony.  The  facts  inquired  of  were  noi  material 
to  the  i  sue,  and  were  not  ..pen  to  contradiction.  The  auditing 
of  Eayden'e  accounts  by  Shailer  in  ls.">.~>,  her  dissatisfaction  with 


134  UNDUE   INFLUENCE. — FRAUD. 

and  continued  employment  of  Hayden,  proposed  to  be  proved  in 
cross-examination  of  Shatter,  were  circumstances  too  remote  in 
point  of  time  to  have  any  bearing  upon  the  mental  status  at  the 
date  of  the  will. 

It  was  further  objected  that  Hayden  and  Shatter  were  not  com- 
petent witnesses  under  the  statute.  But  this  is  not  a  case  where 
one  of  the  original  parties  to  the  contract  or  cause  of  action  in 
issue  ami  on  trial  is  dead.  They  are  not  parties  in  a  representa- 
tive capacity.  There  was  no  cause  of  action  in  existence  till  the 
death  of  the  testatrix.  The  controversy  is  between  living  parties. 
The  testatrix  is  in  no  sense  a  party  to  the  original  cause  of  action. 
Her  act  was  only  the  subject-matter  of  the  investigation.  The 
rule  contended  for  would  exclude  parties  on  both  sides  in  all 
cases  where  litigation  should  arise,  growing  out  of  the  act  of  an- 
other during  life.  We  cannot  construe  the  proviso  of  the  statute 
so  as  to  exclude  as  witnesses  all  those  who  may  be  parties  on  one 
side  or  the  other  in  all  probate  appeals  like  this  ;  and  we  find  no 
error  in  the  ruling.  Gen.  Sts.,  c.  131,  sec.  14.  Baxter  v. 
Knowles,  12  Allen  114. 

Facts  showing  the  mental  and  moral  condition  of  the  testatrix 
in  July,  1854,  and  at  various  periods  subsequent  to  that  time, 
were  offered,  and  excluded  as  being  too  long  after  the  date  of  the 
will.  To  a  great  extent,  it  must  be  left  to  the  presiding  judge  to 
determine  upon  the  facts  before  him  how  far  evidence  of  this 
description  may  have  a  tendency  to  throw  light  on  the  fact  to  be 
found,  namely,  the  actual  condition  at  the  date  of  the  will.  Some 
limit  must  of  course  be  had  in  applying  practically  the  rules 
which  govern  the  admission  of  this  evidence.  We  do  not  perceive 
any  reason  to  differ  from  the  judge  in  the  limit  here  applied. 
After  July,  1854,  her  mental  condition  must  have  greatly  changed. 
Her  advanced  age,  and  the  paralysis  with  which  she  was  at  that 
time  seized,  seem  to  make  that  period  a  proper  limit  for  the  evi- 
dence offered  ;  and  we  see  no  reason  for  sustaining  this  excep- 
tion. 

In  regard  to  the  offer  to  show  that  several  of  the  family  of  the 
testatrix  had  been  in  advanced  age  affected  by  paralysis,  accom- 
panied by  an  enfeebling  of  the  mental  and  moral  powers,  and 
that  it  was  a  family  tendency,  we  are  of  opinion  that  no  sufficient 
foundation  wras  laid  for  the  admission  of  such  evidence.    In  ques- 


TESTATOR'S   DECLARATIONS   AFTER   EXECUTION.  135 

tions  of  sanity,  proof  of  hereditary  tendency  is  competent  in  sup- 
port of  evidence  of  the  existence  of  insanity  in  any  given  case. 
Here  the  sanity  of  the  testatrix  is  not  to  be  called  in  question. 
Her  complaints  of  numbness  in  1851,  her  physical  weakness  and 
mental  inactivity  prior  to  the  attack  of  paralysis  in  1851,  do  not 
justify  the  admission  of  the  proof  offered  of  hereditary  tendency. 
No  case  is  cited  in  which  such  evidence  has  been  admitted  in  aid 
of  the  proof  showing  mere  weakness  of  mind  or  eccentricity.  1 
Redfield  on  Wills,  156,  15T;  Baxter  v.  Abbott,  7  Gray  75.  * 

The  only  remaining  point  arises  upon  the  manner  in  which  the 
issues  as  framed  were  submitted  to  the  jury  by  the  presiding 
judge.  It  is  claimed  to  be  the  duty  of  this  court  now  to  revise 
the  order,  upon  exceptions  or  appeal  taken  in  the  usual  way.  In 
the  matter  of  framing  issues,  proceedings  in  probate  appeals  are 
conducted  in  accordance  with  the  rules  and  practice  in  equity. 
The  findings  of  the  jury  in  such  cases  are  availed  of  to  inform  the 
court  in  matters  of  controverted  facts  which  may  become  material 
in  settling  the  tinal  decree.  They  may  be  disregarded,  in  whole 
or  in  part,  if  on  the  final  hearing  they  are  not  deemed  important 
or  relevant ;  or  such  new  issues  may  from  time  to  time  be  framed 
and  submitted  as  a  just  regard  to  the  rights  of  all  may  seem  to 
require. 

Three  testamentary  papers  were  here  produced,  purporting  to 
have  been  executed  in  three  different  years.  The  like  four  issues 
were  presented  as  to  each.  The  court,  having  regard  to  the  fact 
alleged,  that  the  mental  capacity  of  the  testatrix  had  been  seri- 
<>ii.-ly  affected  by  severe  illness  between  the  years  last  named, 
ordered  the  issues  tried  separately;  and  those  relating  to  the  will 
of  1853  have  been  accordingly  twice  tried.  Two  of  the  issues  at 
the  tir-t  and  two  at  the  last  trial  were  found  in  favor  of  the 
will.  We  cannot  see  that  any  injustice  has  been  or  is  likely  to 
be  done  by  submitting  the  issues  in  this  way  to  the  jury  ;  or  that 
the  trial  of  the  issues  upon  the  will  of  1853  ought  not  now  to  he 
completed. 

The  exceptions  having  been  sustained  in  the  single  respect 
above  stated,  the  last  verdicl  of  the  jury  upon  the  issues  relating 
t<»  the  will  of  L853  is  therefore  sel  a  ide,  and  a  new  trial  ordered 
upon  the  si nd  and  third  issues  relating  to  that  will. 


136  UNDUE  INFLUENCE. — FRAUD. 


UNDUE  INFLUENCE.— TESTATOR'S  DECLARATIONS  BEFORE 
AND  AFTER  EXECUTION. 

Iler§ter  v.  Herster. 

Pennsylvania  Supreme  Court,  1889. 
(122  Penn.  St.  239.) 

Clark,  J. — This  issue,  devisavit  vel  non,  was  framed  in  the 
Court  of  Common  Pleas  of  Northampton  County  to  test  the  valid- 
ity of  the  last  will  and  testament  of  Andrew  Herster,  deceased, 
and  of  the  several  codicils  thereto.  The  will  was  made  and  ex- 
ecuted 13th  June,  1874 ;  the  first  codicil,  28th  August,  1878 ;  and 
tfre  second,  7th  May,  1880.  Andrew  Herster  died  27th  May, 
1882,  at  the  age  of  81  years,  possessed  of  an  estate  estimated  at 
$200,000,  leaving  surviving  six  children,  viz. :  Daniel  Herster, 
Jacob  Herster,  Susan  Kelper,  Eliza  Reich,  Andrew  J.  Herster, 
and  William  Henry  Herster.  Of  these,  Andrew  J.  Herster  is  the 
principal  devisee  and  proponent  of  the  will,  and  William  Henry 
Herster  and  Eliza  Reich  are  the  contestants.  The  only  matter  in 
issue  under  the  pleadings  is,  whether'or  not  the  will  and  the  codi- 
cils, or  any  of  them,  were  procured  by  fraud  or  undue  influence, 
the  contestants  who  were  plaintiffs  below,  maintaining  the  affirm- 
ative, and  the  proponents,  the  negative  of  that  issue.  That  An- 
drew Herster  was,  at  the  time  of  making  the  will  and  codicils,  of 
sound  and  disposing  mind  and  memory,  is  therein  assumed.  No 
questions  can  be  made  as  to  this ;  the  only  proper  matter  for  con- 
sideration being  whether  that  mind  and  memory  were  in  these 
testamentary  acts,  or  in  any  of  them,  led  captive  by  the  artifice 
and  undue  influence  of  Andrew  J.  Herster,  or  of  any  other  per- 
son in  his  interest,  so  that  the  written  papers  do  not  express  the 
testator's  true  purpose  in  the  disposition  of  his  estate. 

Undue  influence  is  very  nearly  alike  to  fraud,  yet  they  are  not 
identical.  While  undue  influence  comprehends  fraud,  fraud  does 
not  embrace  every  species  of  undue  influence.  1  Redf.  Wills, 
500/i.  It  is  only  necessary,  therefore,  to  consider  the  case  upon 
the  mere  comprehensive  question  of  undue  influence,  for  this  will 
embrace  all  sorts  of  artifice,  imposition,  or  bad  faith  which  char- 
acterize acts  of  fraud.  Undue  influence  exists  wherever  through 
weakness,  ignorance,  dependence,  or  implicit  reliance  of  one  on 


DECLARATIONS    BEFORE    AND    AFTER   EXECUTION.        137 

the  good  faith  of  another,  the  latter  obtains  an  ascendency  which 
prevents  the  former  from  exercising  an  unbiased  judgment.  To 
affect  a  will,  it  must,  in  a  measure  at  least,  destroy  free  agency, 
and  operate  on  the  mind  of  the  testator  at  the  time  of  making  the 
will.  The  rule  is  well  and  forcibly  stated  by  our  Brother  Gordon 
in  Tawney  v.  Long,  76  Pa.  St.  115,  as  follows:  "  Undue  influ- 
ence, of  that  kind  which  will  affect  the  provisions  of  a  testament, 
must  be  such  as  subjugates  the  mind  of  the  testator  to  the  will  of 
the  person  operating  upon  it ;  and,  in  order  to  establish  this,  proof 
must  be  made  of  some  fraud  practiced,  some  threats  or  misrepre- 
sentations made,  some  undue  flattery,  or  some  physical  or  moral 
coercion  employed,  so  as  to  destroy  the  free  agency  of  the  testa- 
tor ;  and  these  influences  must  be  proved  to  have  operated  as  a 
present  constraint  at  the  very  time  of  making  the  will."  It  may, 
in  the  language  of  the  learned  judge  below,  be  exercised  by  means 
of  misrepresentation  and  falsehood,  directed  against  the  persons 
who  would  be  the  objects  of  the  testator's  bounty,  if  the  misrep- 
resentation and  falsehood  so  poisoned  the  mind  of  the  testator  as 
to  destroy  his  free  agency.  It  is  a  matter  of  common  knowledge 
that  a  person  of  feeble  intellect  is  much  more  easily  influenced  by 
undue  means  than  is  one  of  a  vigorous  mind.  Therefore,  in  pass- 
ing upon  a  question  of  undue  influence  the  strength  and  condition 
of  the  mind  may  become  a  proper,  indeed  an  essential,  subject  of 
inquiry;  for,  although  weakness,  whether  arising  from  age,  in- 
firmity, or  other  cause,  may  not  be  sufficient  to  create  testamen- 
tary incapacity,  it  may  nevertheless  form  favorable  conditions  for 
the  exercise  of  undue  influence. 

It  is  contended  on  the  part  of  the  contestants  that  although 
Andrew  Herster  must  be  presumed  to  have  had  testamentary  ca- 
pacity at  the  time  of  the  making  of  this  will  and  the  codicils 
thereto, — and  thai  cannot  he  questioned  in  this  issue, — yet  both 
his  mind  and  body  had  iu  fact  been  greatly  impaired  by  tin'  in- 
firmity of  age  and  disease;  that  he  was  70  years  of  age  when  he 
made  hi-  will.  80  when  he  made  (he  first  codicil,  and  82  when  he 
made  tin-  second  codicil,  and  that  he  was  aged  si  years  when  he 
died  :  that  for  25  years  he  had  suffered  from  a  progressive  general 
paresis  or  softening  of  the  brain;  that  he  had  an  apoplectic  seiz- 
ure a  short  time  before  the  execution  of  the  will ;  and  that  Ids 
memory  was  much  impaired  and  his  mind  generally  enfeebled. 


138  UNDUE  INFLUENCE. — FRAUD. 

In  other  words,  that  although  the  testator's  mind  was  not  enfee- 
bled to  the  extent  of  testamentary  incapacity,  yet  it  was  so  weak- 
ened by  disease  and  old  age  as  to  make  the  testator  an  easy  prey 
to  the  artifice  of  his  son,  and  that  Jackson  took  advantage  of  his 
father's  weak  condition  to  procure  the  will  to  be  made  in  his  fa- 
vor. The  proponents  of  the  will,  on  the  other  hand,  contend  that 
the  testator  was  of  a  strong,  robust,  and  resolute  mind ;  that  al- 
though advanced  in  years,  and  afflicted  to  some  extent  with  the 
disease  stated,  he  conducted  business  successfully  and  extensively 
throughout  the  whole  period  of  his  affliction,  and  until  two  weeks 
of  his  decease ;  that  he  was  engaged  extensively  and  profitably  in 
the  purchase  and  sale  of  cattle ;  that  he  kept  his  own  accounts, 
made  his  own  calculations,  and  drew  his  own  checks  in  payment 
until  the  month  in  which  he  died  ;  that  within  a  year  prior  to  his 
death  he  paid  to  three  of  the  witnesses  alone  for  cattle  over 
$26,000,  and  within  four  months  and  one-half  before  his  death  he 
paid  out  with  his  own  checks  to  different  persons  for  cattle  over 
$11,000;  that  it  was  the  result  obtained  in  his  various  business 
transactions  after  the  making  of  his  will  which  made  further  tes- 
tamentary provision  necessary ;  that  Jackson,  his  son,  had  been  a 
good  boy,  had  remained  at  home  with  his  parent,  and  had  ren- 
dered him  valuable  and  important  services ;  that  the  old  man  had 
a  high  opinion  of  his  son's  business  capacity,  and  on  that  account 
often  deferred  to  his  judgment  in  business  matters  ;  and  that  the 
provisions  in  his  will,  and  the  codicils  in  his  favor,  were  a  free 
and  voluntary  act  of  his  father,  prompted,  perhaps,  by  his  affec- 
tionate regard  for  his  son,  and  a  consideration  of  his  personal  ser- 
vices and  worth.  It  will  be  seen,  therefore,  that  undue  influence 
is  the  substantial  fact  affirmed  on  the  one  side  and  denied  on  the 
other ;  imbecility  or  weakness  of  mind  being  a  collateral  or  ex- 
traneous question  arising  out  of  the  proofs. 

The  declarations  of  the  testator,  made  within  a  reasonable  time 
before  and  after  the  execution  of  the  will,  have  always  been  re- 
ceived in  evidence  upon  a  question  of  testamentary  capacity,  to 
show  the  state  and  condition  of  the  testator's  mind ;  and,  if  rea- 
sonably connected  in  point  of  time  with  the  testamentary  act,  we 
cannot  see  any  reason  why  they  would  not  be  admissible  to  estab- 
lish the  same  fact  in  an  issue  raised  upon  the  exercise  of  fraud  and 
undue  influence  in  the  procurement  of  it.     Such  declarations  can- 


DECLARATIONS  BEFORE  AND  AFTER  EXECUTION.   139 

not  have  any  force,  however,  in  establishing  the  substantive  fact 
of  undue  influence.     "  It  is  certain  such  testimony  is  not  admis- 
sible for  the  purpose  of  proving  any  distinct  fact  depending  upon 
the  force  of  the  admission,  since  the  testator  is  not  a  party  to  the 
question  of  the  validity  or  interpretation  of  his  will."     Comstock 
v.  Hadlyme,  8  Conn.  254 ;  1  Redf.  Wills,  539.     "  The  object  of 
this  testimony  is  to  show  such  a  state  of  weakness  or  vacillation 
of  mind  as  rendered  the  testator  an  easy  victim  either  of  artifice, 
force,  or  fraud.     Such  declarations  afford  the. most  satisfactory 
evidence,  not  only  of  the  strength  of  mind,  but  often  exhibit  those 
peculiar  phases  of  the  mind  and  of  the  affections,  which  especially 
expose  the  testator  to  be  overcome  by  the  terror  of  threats  or  the 
seductions  of  flattery.     And  although  these  declarations  will  nec- 
essarily afford  some  ground  forjudging  in  regard  to  the  effect  of 
any  attempts  of  undue  influence,  that  element  in  the  testimony, 
not  being  legitimate,  can  only  be  eliminated  by  the  judge  in  sum- 
ming up  to  the  jury."     Redf.  Wills,  548.     "It  is  apparent  that 
the  declarations  of  the  testator  that  he  did  not  execute  his  will 
freely,  that  he  never  intended   to  have  made  such  a  will,  and 
never   should  but  for  the  influence  of  those  persons  in  whose 
favor    it    is    made,   and    similar   declarations,    which    are    very 
common  in  the  testimony  elicited  in  testamentary  causes,  can  be 
of  no  force  whatever  as  testimony  tending  to  establish  the  truth 
of  the  declarations.     In   that  light,  such  declarations  are  mere 
hearsay,  depending  for  their  force  upon  our  confidence  in  the 
veracity  of  the  person  making  them,  and  in  most  cases  easily  ex- 
plained, without  regard  to  the  question  of  their  truth,  and  which 
have  always  been  rejected  as  evidence."     Id.  550.    Testamentary 
capacity  being  the  normal  condition  of  a  person  of  full  age,  it  fol- 
lows that,  in  the  absence  of  evidence  of  undue  influence,  proof  of 
the  testator's  declarations  should  be  excluded,  or  wholly  disre- 
garded  on   that  question.     Therefore,  in  Moritz  v.   Brough,  16 
Berg.  &  It.  403,  it  was  held  that  to  set  aside  a  will,  duly  executed 
by  a  man  of  competent  understanding,  evidence  is  not  admissible 
of  declaration-  made  ley  liim  that  he  intended  differently  and  was 

importuned  by  his  wife;  or  of  the  wife's  high  temper  and  impor- 
tunities with  tli<'  testator  in  relation  to  his  will.  So  in  Hoshauer 
v.  Hoshauer,  26  Pa.  Si.  404,  the  testator's   mental   capacity  was 

not    disputed.      The  will  w.c    made   in  1853.      To  show  undue  in- 


140  UNDUE  INFLUENCE. — FRAUD. 

fluence  the  contestants  offered  to  prove  that  in  1855  the  testator 
said  he  had  "  made  a  will,"  that  he  had  "  made  it  as  John  wanted 
it ";  that  he  had  "  to  make  it  as  John  wanted  it ";  and  that  he 
"  knew  it  was  wrong."  The  offer  was  rejected,  and  upon  error 
it  was  held  that  it  was  rightly  rejected.  Mr.  Justice  Lowrib,  de- 
livering the  opinion  of  the  court,  said :  "  This  could  not  prove 
fraud  in  procuring  it,  though  nearly  all  the  estate  was  given  to 
John's  children,  himself  getting  a  dollar.  An  instrument  that 
for  two  years  remained  subject  to  change  or  cancellation  at  the 
maker's  pleasure  cannot  be  set  aside  on  such  a  declaration.  A 
man  who  is  competent  to  make  a  will  can  so  easily  correct  any  of 
its  provisions,  however  obtained,  that  it  is  hard  to  imagine  any 
kind  of  declarations  of  his  that  would  prove  it  to  be  fraudulent, 
when  any  considerable  time  has  intervened  between  its  execution 
and  his  death."  So,  also,  in  McTaggart  v.  Thompson,  14  Pa.  St. 
149,  where  the  validity  of  a  will  was  questioned  both  for  want  of 
testamentary  capacity  and  for  exercise  of  undue  influence,  the 
contestants  offered  to  prove  the  testator's  declaration,  made  after 
the  execution  of  the  will,  to  the  effect  that  in  the  making  of 
it  he  has  been  imposed  upon  by  those  in  whose  favor  it  was  made. 
The  offer  was  refused,  and  upon  that  ground  the  case  was  removed 
to  this  court.  "  The  court  appears,"  said  Mr.  Justice  Rogers, 
"  to  have  excluded  the  testimony  because  they  chose,  contrary  to 
the  offer,  to  suppose  it  was  designed  to  prove  duress,  for  which 
purpose  it  would  be  clearly  inadmissible.  But  the  court  had  no 
right  to  act  on  the  supposition  that  the  testimony  was  proposed 
in  bad  faith.  As  it  was  offered  for  a  legitimate  purpose,  for  that 
purpose  it  ought  to  have  been  received.  If  attempted  to  be  used 
for  a  different  purpose  the  correction  was  in  their  own  hands ; 
the  counsel  would  subject  themselves  to  the  severest  censure.  If 
the  facts  were  as  represented,  it  was  evidence  of  imbecility  of  in- 
tellect, amounting  almost  to  fatuity."  To  the  same  effect  is  the 
current  of  authorities  in  other  States.  Robinson  v.  Hutchinson, 
26  Vt.  38 ;  Richardson  v.  Richardson,  35  Vt.  238 ;  Shailer  v. 
Bumstead,  99  Mass.  112 ;  Kinne  v.  Kinne,  9  Conn.  102 ;  Provis 
v.  Reed,  5  Bing.  435 ;  Jackson  v.  Kniffen,  2  Johns.  31 ;  Pember- 
ton's  Will,  4  Atl.  Rep.  770 ;  Waterman  v.  Whitney,  11  K  Y. 
157;  Stevens  v.  Yancleve,  4  Wash.  C.  C.  265.  In  order  that  the 
declarations  of  the  testator  may  be  considered  at  all  upon  issue  of 


DECLARATIONS   BEFORE  AXD   AFTER   EXECUTION.       141 

undue  influence,  there  must  be  proof  of  other  facts  and  circum- 
stances indicating  circumvention  or  fraud  in  the  procurement  of 
the  will  (Tawney  v.  Long,  supra),  for  they  are  received,  not  as 
proof  of  the  fact,  but  merely  to  show  that  there  are  special 
grounds  for  apprehending,  and  unusual  opportunities  for  exercis- 
ing, undue  influence,  and  to  illustrate  the  effect  of  such  influence 
after  its  existence  has  been  established,  unless,  perhaps,  as  part  of 
the  res  gestae,  when  they  are  made  at  the  very  time  of  the  execu- 
tion of  the  will,  and  form  part  and  parcel  of  the  transaction 
(Smith  v.  Fenner,  1  Gall.  172;  Boylan  v.  Meeker,  28  N".  J.  Law 
274 ;  Harrison's  Appeal,  100  Pa.  St.  458).  The  weakness  of 
mind  and  consequent  susceptibility  to  influence  which  is  admis- 
sible in  such  a  case  must  be  shown  to  exist  at  the  very  time  of  the 
testamentary  act ;  while  the  testator's  declarations  directly  show 
only  the  state  of  his  mind  when  they  were  made.  Declarations  made 
before  and  after  have  some  significance,  however,  in  showing  infer- 
entiallv  the  mental  condition  at  the  time  of  the  testamentary  act. 
The  limitations  which  govern  the  admission  of  this  quality  of  evi- 
dence must  depend  largely  on  the  character  of  the  unsoundness 
attempted  to  be  proved.  There  are  types  of  mental  unsoundness 
which  appear  suddenly,  and  are  of  short  duration,  and  in  such 
cases  the  proof,  to  be  of  any  avail,  must  come  near  to  the  precise 
time  when  the  act  was  performed;  but  the  decadence  of  old  age, 
and  many  forms  of  mental  derangement  and  imbecility,  are  of 
slow  advancement,  and  proof  of  their  distinct  development  at  any 
given  period  will  afford  pretty  clear  ground  to  infer  their  exist- 
ence for  a  long  period,  either  before  or  after,  with  a  considerable 
degree  of  certainty.  Grant  v.  Thompson,  4  Conn.  203.  There- 
fore declarations  made  several  years  even  before  the  execution  of 
a  will  may  be  shov/n  to  show  unsoundness  or  imbecility  of  mind  of 
a  permanent  character;  and  declarations  made  after  may,  in  like 
in  inner,  tend  to  show  such  a  fixed  perversion  or  imbecility  oi 
mind  as  would  not  be  likely  to  have  occurred  in  any  short  period 
of  time  ;  and  both  or  either  may  afford  some  just  -round  of  opin- 
ion in  regard  to  the  state  of  the  testator's  mind  at  the  date  of  the 
■  tamentary  act.  1  Redf.  Wills,  549.  The  court  must  judge  in 
h  particular  case  how  far  it  will  he  profitable  to  extend  the 
rule  before  and  after  the  precise  date  in  question.  Grant  v. 
Thompson,  supra.     As  the  proof  of  the  testator's  declarations  is 


142  UNDUE  INFLUENCE. — FRAUD. 

only  admissible  in  this  case  to  show  the  state  of  his  mind,  and  the 
effect  of  undue  influence,  if  any  is  shown  to  have  existed,  we  can- 
not say,  in  view  of  the  particular  type  of  mental  unsoundness 
alleged,  and  the  peculiar  circumstances  of  this  case,  that  the 
scope  of  the  investigation  was  too  wide.  Of  course,  the  objective 
point  of  inquiry  in  every  case  is  the  state  of  mind  at  the  precise 
date  of  the  testamentary  act,  but,  as  it  is  not  practicable  in  all 
cases  to  make  that  inquiry  in  a  direct  manner,  some  latitude  of 
proof  must  be  allowed. 

At  the  iirst  trial  of  this  case,  the  learned  judge  of  the  court 
below  instructed  the  jury  in  the  most  explicit  and  proper  manner 
that  these  declarations  of  the  testator  were  not  evidence  at  all  as 
to  the  fact  of  undue  influence,  because  there  was  no  evidence  that 
they  were  true.  "  For  all  that  appears,"  says  the  learned  judge, 
"they  may  have  been  the  expression  of  a  mere  delusion  on  the 
part  of  the  testator."  At  the  second  trial,  however,  the  court 
received  the  evidence,  and  submitted  it  to  the  jury,  without  any 
qualification  whatever.  Whether  this  omission  was  the  result  of 
a  change  of  opinion  respecting  the  force  of  the  evidence,  or  was 
a  mere  inadvertence,  or  whether  the  learned  judge  inferred  from 
the  opinion  of  this  court,  delivered  when  this  case  was  here 
before,  that  such  declarations  were  deemed  proper  evidence  of 
undue  influence  (11  Atl.  Rep.  110),  we  cannot  say.  Of  one  thing 
we  are  certain;  that  the  failure  to  qualify  the  effect  of  this 
evidence  was  fatal  to  the  defendant's  case.  There  is,  in  the  con- 
cluding clause  of  the  opinion  referred  to,  enough,  perhaps,  to  give 
the  impression  that  the  declarations  of  the  testator,  made  a  few 
days  prior  to  his  death,  as  to  his  unsuccessful  attempt  to  get  pos- 
session of  his  will  from  Lynn,  followed  by  his  exclamation  on  the 
day  of  his  death,  "ifem  Oott  in  Himmel,  es  ist  alles  lets,  alles 
letz  !  " — "  My  God  in  Heaven,  all  is  wrong,  all  is  wrong  !  " — were 
deemed  proper  evidence  of  undue  influence.  But  the  law  is  too 
well-settled  on  this  point  to  admit  of  any  doubt.  The  testimony 
was  admissible,  perhaps,  but  it  was  for  the  consideration  of  the 
jury  only  on  a  certain  event,  and  then  for  a  special  purpose,  to 
show  the  state  and  condition  of  the  testator's  mind  ;  and,  as  the 
declarations,  were  made  eight  vears  after  the  execution  of  the 
will,  and  four  years  and  two  years  after  the  making  of  the  codicils 
respectively,  and  then  were  uttered  almost  in  the  last  moments  of 


DECLARATIONS    BEFORE   AND    AFTER   EXECUTION.        143 

the  testator's  life,  they  were,  it  must  be  conceded,  of  little  force 
or  inferential  effect,  under  the  circumstances,  even  as  to  that.  We 
then  said  in  advance  we  could  not  "  say  that  the  answers  to  the 
proposed  questions  would  not  indicate  the  exercise  of  undue  in- 
fluence," etc.  Now  that  the  answers  are  before  us,  we  can  with, 
out  hesitation  say  that  they  are  not.  The  defendant's  counsel,  by 
a  point  more  particularly  directed  to  this  branch  of  the  evidence, 
might  have  directed  the  attention  of  the  court  to  the  proper 
application  of  this  part  of  the  evidence  in  a  more  direct  manner 
than  appears  to  have  been  done;  but  we  think  the  question  is 
raised  in  the  answers  to  the  defendant's  fifth  and  sixth  points. 
Although  these  points  were  not  directed  to  the  precise  question 
now  under  consideration,  yet  the  answers  of  the  court  proceed 
plainly  upon  the  assumption  that  the  testator's  declarations  might 
be  regarded  as  indicating  undue  influence,  or  present  constraint, 
operating  upon  the  mind  of  the  testator  in  the  testamentary  act; 
and  upon  this  ground  the  judgment  must  be  reversed. 

In  the  former  opinion  of  this  court  it  was  held  that  the  evidence 
was  sufficient  to  justify  a  submission  to  the  jury.  The  testimony 
was  then  and  is  now  very  voluminous,  the  evidence  embracing 
over  1,000  pages  of  printed  matter,  and  perhaps  we  did  not  give 
it  that  exhaustive  examination  and  patient  study  which  we  have 
since  been  enabled  to  do.  The  whole  case  is  now  before  us,  and 
we  are  constrained  to  say  that  the  testimony  bearing  upon  the 
precise  question  at  issue  is  certainly  of  the  most  meagre,  unsatis- 
factory, and  inconclusive  character.  It  is  said  that  Jackson 
Ilerster  stood  in  a  confidential  relation  to  the  testator;  that  lie 
was  the  testator's  son,  and  was  to  some  extent  intrusted  with  his 
father's  business ;  but  he  was  not  present  at  the  making  of  the 
will,  nor  does  it  appear  that  it  was  made  by  counsel  at  his  pro- 
curement. The  testator  wenl  to  Mr.  Lynn,  who  had  been  his 
attorney  and  counselor  for  fourteen  oi-  fifteen  years,  and,  in  the 
absence  of  all  his  children,  with  the  greatest  deliberation  arranged 
t''<r  the  preparation  of  his  will.  Thai  Jackson  was  a  son  was 
certainly  in  his  favor;  that  he  was  intrusted  with  his  father's 
business,  ami,  in  this  respect,  occupied  a  confidential  relation 
towards  him,  is  also  a  circumstance  in  hi-  favor,  it'  he  performed 

hi-  duty  faithfully  ami    well,  and    did    not    take  advantage   of   his 

position,  or  abuse  the  confidence  reposed  in  him  in  the  procure- 


144  UNDUE  INFLUENCE. — FRAUD. 

ment  of  the  will.  There  is  not  the  slightest  proof  that  he  took 
any  part  in  the  actual  preparation  of  the  will,  or  of  any  of  the 
codicils ;  indeed,  that  he  was  even  present  when  they  were  made 
and  written,  or  when  they  were  signed.  Under  these  circum- 
stances the  burden  of  proving  undue  influence  is  clearly  upon 
those  who  allege  it.  The  unequal  disposition  which  the  testator 
made  of  his  property,  under  the  circumstances  of  this  case,  is  not 
of  great  significance.  "  There  may  be  cases,"  as  was  said  in  Pat- 
terson v.  Patterson,  6  Serg.  &  R.  56,  "  where  this  internal  evi- 
dence, added  to  other  proof  which  would  of  itself  leave  the 
question  doubtful,  ought  to  turn  the  scale."  But  the  inequality 
in  the  provisions  of  this  will,  taken  in  connection  with  all  the 
evidence  referred  to,  is  not  such  as  would  induce  any  reasonable 
belief  that  in  the  making  of  it  the  testator  was  acting  under  any- 
improper  influence  ;  and  especially  is  this  so  in  view  of  the  evi- 
dence which  has  been  introduced  to  explain  the  reasons  and  dis- 
close the  motives  which  probably  actuated  the  testator  in  this 
disposition  of  his  property.  The  very  object  of  making  a  will  is 
to  disturb  the  equality  of  distribution  which  the  law  establishes 
in  the  absence  of  one  ;  and  whether  the  reasons  for  it,  in  the 
testator's  mind,  are  well  or  ill  founded,  is  immaterial,  if  he  has 
arrived  at  the  result  of  his  own  volition,  and  without  any  fraud, 
coercion,  or  constraint  of  others.  It  is  onlv  when  the  will  is 
grossly  unreasonable  in  its  provisions,  and  plainly  inconsistent 
with  the  testator's  duty  to  his  family,  that,  in  case  of  /loubt,  the 
inequality  can  have  any  effect  on  the  question  of  undue  influence. 
The  evidence  in  this  case  is  not,  in  our  opinion,  of  such  a  character 
as  to  leave  the  question  at  issue  in  doubt.  On  the  contrary,  the 
uncontradicted  proofs  abundantly  explain  the  testator's  motives 
in  making  his  will  as  he  did. 

Apart  from  the  internal  evidence  supposed  to  be  afforded  by 
the  will  itself  and  the  confidential  relation  referred  to,  and  ap- 
plying to  the  declarations  of  the  testator  as  evidence  of  the  state 
and  condition  of  his  mind,  the  evidence  of  undue  influence  con- 
sists mainly  of  the  testimony  of  five  witnesses :  Amandas  Fry, 
Charles  Haibing,  Hannah  Weaver,  Samuel  Weidknecht,  and 
Henry  Weidknecht.  The  circumstance  related  by  Amandas 
Fry  is  of  the  most  inconsequent  character.  In  the  year  1880  or 
1881,  he  told  the  testator  he  had  a  lot  on  College  Hill  that  Jacob 


DECLARATIONS  BEFORE  AND  AFTER  EXECUTION.   145 

would  like  to  have.  The  price  was  $7,500.  The  old  man  prom- 
ised to  go  up  and  see  it.  Failing  to  do  so,  Fry  went  to  see  him 
again.  He  says  :  "  I  told  him,  '  Daddy,  you  did  not  come  up  to 
see  my  place.'  He  said,  '  No,  I  did  not.'  Then  he  said  some- 
thing about  having  a  fall,  and  hurt  his  thumb  or  finger, — I  forget 
where  it  was, — and  he  couldn't  get  up,  but  that  his  son  Jake  told 
him  that  the  property  was  cheap,  and  they  might  as  well  buy  it, 
because  they  had  the  money  lying  idle.  But  he  said,  k  I'll  see 
Jack  first ';  and  then  he  called  Jack,  and  he  told  Jack  about  it, 
and  said,  '  Here's  Fry  about  that  lot  on  College  Hill.  Jake  says 
it  is  cheap,  and  we  might  as  well  buy  it.'  Jack  said,  '  No,  father; 
we  have  got  enough  borough  property.  If  we  want  to  buy  prop- 
erty, buy  farms.'  Then  the  old  gentleman  said,  '  Well,  if  you 
say  so,  all  right ';  and  that  ended  the  matter." 

( lharles  Baibing  lived  in  the  testator's  family  from  April,  1880, 
for  nine  months.  He  returned  in  the  spring  of  1881,  and  left 
some  time  previous  to  the  old  man's  death.  His  testimony  re- 
lates chiefly  to  the  conversation  of  the  family  while  at  their  meals. 
In  speaking  of  what  Jack  and  his  wife  said  at  the  table  in  the 
old  man's  presence,  he  says:  "  They  allowed  that  Jake's  children 
were  running  around  and  spending  their  money,  and  that  if  he 
got  such  things  he  would  not  take  care  of  them.  Question.  Was 
this  said  upon  more  than  one  occasion,  or  only  once?  Answer. 
Frequently.  Q.  What  effect  did  it  have  apparently  on  the  old 
man  \  what  would  he  say?  A.  Well,  he  would  generally  side  in 
with  the  family.  Q.  Did  you  ever  hear  anything  said  about 
Benry  or  his  wife  or  his  children?  A.  Yes,  I  did.  Q.  Wh.it 
did  he  say  aboul  them  I  A.  Well, — no  offense  to  the  lady  there, 
or  the  family, — I  shall  speak  the  remark  as  it  was  spoken  at  the 
place.  Q.  Who  said  it?  A.  Jack  Berster;  'Beck,  fat  Deck.' 
Q.  What  did  he  say  about  them  besides?  .1.  Well,  thai  the 
children  were  no  good,  running  around,  and  out  on  the  streets 
nights,  and   Ben  Berster  running  around,  and  the  like  of  that. 

Q.    Did   yon   hear  Jack  say  anything  about  his  sister  Susan  '.      .1. 

JTes,  Mi-.  Helper  and  her  Rosa.     Q.  What  did  he  say  al t  her? 

A.  That  they  were  :i  si  i  irk -up  set,  and  that  if  they  gol  anything  fchej 

would  not  take  rare  of  it.      Q.    When  they  said  this,  what  did  the 
old  man  say  '.      A.    Well,  the   old    man    would   side   in  with  them. 

He  would  have  the  Bame  opinion,  apparently,  to  me.     Q.  Did  he 
10 


146  UNDUE   INFLUENCE. — FRAUD. 

say  anything  about  Eliza,  Mrs.  Reich  ?  A.  Yes.  Q.  I  mean 
Jack  ;  what  did  Jack  say?  A.  As  I  understand,  Mr.  Reich  stole 
a  c<>\\",  and  drove  her  to  Allentown  or  Catasauqua, — I  am  not  cer- 
tain which  of  the  two  places, — and  sold  this  cow;  and  the  old 
man,  of  course,  had  bitter  feelings  against  Mr.  Reich  on  that  ac- 
count, and  I  often  heard  the  remark  made  that  they  should  not 
have  anything.  Q.  Heard  Jack  say  it  ?  A.  Yes.  Q.  Was  any- 
thing said  about  Dan  by  Jack  ?  A.  Yes.  Q.  What?  A.  Said 
that  Dan  was  a  drunken  man,  and  did  not  take  care  of  his  busi- 
ness ;  that  he  owed  the  old  man  so  much  money  for  cattle,  as  I 
understood,  and  that  he  had  had  enough  for  his  share,  and  would 
not  get  any  more ;  and  his  Irishwoman  and  the  two  boys,  they 
wouldn't  get  nothing.  Q.  Dan's  wife  was  an  Irishwoman,  was 
she?  A.  As  I  understand  it,  yes.  Q.  What  effect  did  that  have 
on  the  old  man?  A.  Well,  he  would  have  the  same  opinion. 
Q.  Would  he  be  in  a  good  humor  or  angry  ?  A.  He  certainly 
would  be  out  of  humor  when  the  rest  spoke  that  way,  and  he 
would  side  in  with  them.  Q.  Would  he  swear  any?  A.  He 
never  would  curse  any.  Oftentimes,  in  German,  he  would  use  an 
oath,  but  I  never  heard  him  go  to  the  extreme.  Q.  What  would 
he  say  in  German  ?  A.  He  would  say  '  Sockerment,'  and  the 
like  of  that." 

Hannah  Weaver  was  employed  as  a  servant  in  the  family  in 
the  year  of  1877.  She  says  :  "  Rosa  Kelper, — that  was  Susan  Kel- 
per's  daughter, — yes,  she  came  there  one  day, — I  think  it  was  on 
Saturday, — and  she  came  there  with  some  flower-seeds,  and  she 
had  a  brown  silk  dress  on,  and  the  door  was  open  between  the 
kitchen  and  the  old  man's  room,  and  so  I  said,  '  Was  that  Miss 
Kelper?'  after  she  was  gone,  and  she  said,  'Yes,  that  was  Rosa 
Kelper ;  but  she  would  not  need  to  put  a  silk  dress  on  to  come 
up  here  to  me,'  and  then  the  old  man  said  something,  but  I  am  not 
positive  what  he  said,  but  he  was  very  angry  about  it."  "  Ques- 
tion. Did  Mrs.  Herster  say  anything  more  to  him  about  not  hold- 
ing out,  or  anything  of  that  kind  ?  Answer.  Oh,  yes ;  she  said 
that  wearing  them  silk  dresses, — she  said  that  that  would  not  hold 
out;  and  then  the  old  man  said,  'Yes;  it  wou't  if  they  have  got 
to  have  it  from  me,' — something  in  that  way  it  was.  Q.  Do  you 
remember  on  different  occasions  anything  being  said  to  the  old 
gentleman  about  the  different  children,  by  Mrs.  Andrew  Herster? 


DECLARATIONS   BEFORE   AND   AFTER   EXECUTION'.        147 

Do  you  remember  anything  being  said  there  at  breakfast  about 
not  being  able  to  sleep  at  night  \  A.  Yes,  one  morning  the  old 
man  got  up  and  was  angry, — that  was  the  old  man  Herster.  Q. 
Who  else  was  there  then  {  A.  I,  and  Jackson  and  his  wife,  and 
the  boys  at  the  table ;  and  then  they  said  they  could  not  sleep  at 
all  last  night.  Q.  Who  said  that  first?  A.  Why,  Jack.  Q. 
Then  what  did  the  old  man  say?  A.  That  he  could  not  sleep 
either;  and  then  Jack  said,  '  Yes,  they  were  playing  on  the  piano 
all  last  night.1  Q.  Who?  A.  Why,  Jack  said  that;  that  he 
could  not  sleep;  that  Henry's  children  were  playing  on  the  piano 
all  night;  and  then  he  said,  '  Yes,  he  better — '  Q.  Who?  A. 
Why,  the  old  man  said,  '  He  better  learn  his  girls  to  play  on  the 
piano,  but  when  Clara  comes  around  1  will  give  it  to  her/  Q. 
What  did  Mrs.  Jack  Herster  say?  A.  '  Yes,'  she  said,  'if  I  had 
girls  you  bet  they  would  learn  to  milk.'  Q.  What  was  the  old 
gentleman's  manner?  A.  Well,  he  was  cross,  angry.  Q.  Did 
you  ever  hear  any  piano-playing  over  there?  A.  No,  I  slept  on 
the  third  story,  and  I  did  not  hear  any.  Q.  Did  you  ever  hear 
any  piano-playing  over  there?  A.  No;  I  heard  a  little  music 
over  there,  but  I  don't  know  what  it  was,  whether  it  was  an  accor- 
dion or  mouth-organ,  or  whatever;  but  I  never  heard  a  piano. 
Q.  Do  you  remember  anything  being  said  about  how  the  piano 
was  brought  there?  A.  Yes;  the  piano  was  brought  in  there, 
and  it  was  so  large  they  couldn't  hardly  get  it  into  the  house.  Q.. 
Who  said  that?  A.  Mrs.  Jackson  Herster.  Q.  W«hen?  A.  The 
same  morning  at  the  table.  She  said  that  they  brought  the  piano, 
and  it  was  so  large  they  could  not  get  it  in  the  door  hardly  ;  and  it  is 
about  all  that  wa>  said.  Q.  Do  you  remember  on  any  other  occa- 
sion when  anything  was  said  about  David?  A.  I  think  it  was 
something,  but  I  can't  just  remember  how  it  was.  Q.  Do  you 
remember  anything  being  said  aboul  his  being  drunk  ?  A,  res, 
it   was   said    he    was   a    regular   drunkard.     Q.  Who  was  thai 

by?      A.    It    1<'I1  at   the  table,  but   I  can't   tell  whether  it   was  Jack 

.-on.  .,1-  hi-  wife  ;  it  was  either  one.  They  said  it  to  the  old  man, 
and  I  sal  by  and  heard  it.', 

Samuel  Weidknechl  testifies  thai  the  old  man,  in  any  business 
n  atter,  would  generally  have  his  own  way  with  other  people,  but 
he  generally  agreed  with  Jackson. 

Il<-nry  Weidknechl  thai  the  old  man  Beemed  to  be  guided 


148  UNDUE  INFLUENCE. — FRAUD. 

a  great  deal  by  Jackson,  and  was  different  in  his  manner  towards 
Jackson  from  what  he  was  to  other  people. 

Reuben  Kolb  testifies  that  he  seemed  to  be  a  little  afraid  of 
Jackson,  that  is,  more  yielding;  that  he  was  usually  a  man  of 
much  determination,  and  was  firm  in  his  opinion  with  others,  but 
that  he  yielded  readily  to  Jackson. 

This  is  a  summary  of  all  the  testimony  bearing  directly  upon 
the  fact  of  fraud  or  undue  influence,  and,  consisting  as  it  does  of 
matters  occurring,  some  three  years  and  some  six  years  after  the 
will  was  made,  it  is  certainly  of  the  most  inconclusive  character. 
There  is,  in  our  opinion,  no  evidence  from  which  a  jury  would 
be  justified  in  inferring  fraud,  duress,  or  undue  influence,  in  the 
making  of  this  will.  In  an  issue  devisavit  vel  non,  the  question 
of  mental  unsoundness  or  of  undue  influence  ought  not  to  be  sub- 
mitted to  the  jury  where  the  evidence  is  of  such  unsatisfactory 
character  that  the  court  would  not  sustain  a  verdict  upon  it. 
Wilson  v.  Mitchell,  101  Pa.  St.  505.  "  A  court  of  law,"  says 
our  Brother  Paxson,  in  Cauffman  v.  Long,  82  Pa.  St.  72,  "  has  a 
higher  duty  to  perform  than  merely  to  answer  points  of  law.  It 
is  its  duty  to  see  that  the  law  is  faithfully  administered  ;  and  such 
administration  requires  that  a  man's  will,  the  most  solemn  in- 
strument he  can  execute,  shall  not  be  set  aside  without  any  suffi- 
cient evidence  to  impeach  it.  There  is  no  redress  here  for  erro- 
neous or  improper  verdict.  But  where  a  case  is  submitted  to  a 
jury  upon  clearly  insufficient  evidence,  such  as  no  court  ought  to 
sustain  a  verdict  upon,  it  is  our  plain  duty  to  reverse.  Sartwell 
v.  Wilcox,  20  Pa.  St.  117 ;  Lower  v.  Clement,  25  Pa.  St.  63  ; 
Silveus'  Ex'rs  v.  Porter,  74  Pa.  St.  448."  "  This  court  has  indi- 
cated in  a  number  of  cases,"  says  our  Brother  Green,  in  Herster 
v.  Herster,  116  Pa.  St.  612,  H  Atl.  Rep.  410,  "a  rule  by  which 
to  determine  the  granting  of  an  issue ;  and  it  is  equally  applicable 
in  determining  whether  a  cause  of  this  kind  ought  to  be  with- 
drawn from  the  jury.  It  is  thus  expressed  in  a  recent  case  :  '  If 
the  testimony  is  such  that  after  a  fair  and  impartial  trial  resulting 
in  a  verdict  against  the  proponents  of  the  alleged  will,  the  trial 
judge,  after  a  careful  review  of  all  the  testimony,  would  feel  con- 
strained to  set  aside  the  verdict  as  contrary  to  the  manifest  weight 
of  the  evidence,  it  cannot  be  said  that  a  dispute  within  the  mean- 
ing of  the  act  has  arisen.     On  the  other  hand,  if  the  state  of  the 


DECLARATIONS   BEFORE   AND   AFTER   EXECUTION.       149 

evidence  is  such  that  the  judge  would  not  feel  constrained  to  set 
aside  the  verdict,  the  dispute  should  be  considered  substantial, 
and  an  issue  to  determine  it  should  be  directed.  This  simple  and 
only  safe  test  is  supported  alike  by  reason  and  authority.'  Kanuss' 
Appeal,  114  Pa.  St.  10,  6  Atl.  Rep.  394."  Applying  this  rule, 
which  would  seem  to  be  well  settled,  to  the  evidence  in  this 
cause,  it  must  be  conceded,  we  think,  that  it  is  wholly  insufficient. 
Upon  a  careful  review  of  all  the  testimony,  this  verdict  could  not 
be  sustained  ;  the  court  should  have  set  it  aside  as  contrary  to  the 
manifest  weight  of  the  evidence ;  and,  if  this  is  so,  it  is  good 
ground  for  reversal  here.  The  facts  exhibited  in  evidence  in  this 
case  to  establish  undue  influence  are,  in  general,  of  the  most 
trivial  character.  The  most  grievous  matters  alleged  are  that 
Jackson  said  Eliza  Reich's  husband  stole  a  cow,  and  that  Dan  was 
a  drinking  man  ;  facts,  however,  which  do  not  seem  to  be  serious- 
ly denied.  It  does  appear  that  Henry  never  had  a  piano,  and  it 
is  probable  that  the  old  man  knew  that  he  had  not,  as  he  was 
actively  engaged  about  the  house  for  five  years  after  this  alleged 
misrepresentation.  Statements  to  the  effect  that  Jackson's  children 
were  "  running  around  spending  their  money,"  that  Henry's  were 
"out  on  the  streets  nights,"  and  that  Mrs.  Kelper's  were  a  "  stuck- 
up  set,"  are  criticisms  that  may  have  been  well  or  ill-founded,  ac- 
cording to  the  stand-point  from  which  their  conduct  was  observed, 
and  the  peculiar  notions  and  temper  of  the  observers.  At  the 
l'<-.-t,  however,  they  have  little,  if  any,  force  in  establishing  fraud 
or  undue  influence  in  the  procurement  of  this  will  or  of  the  codi- 
cil-. And  especially  is  this  true  in  view  of  the  fact  that  the 
alleged  declarations  were  not  only  made  after  the  will  was  exe- 
cuted, but  several  years  after.  There  is  some  evidence  of  mental 
impairment,  but  the  testimony  is  overwhelming  that,  notwith- 
standing this  Impairment,  the  testator  retained  a  business  capacity 
rarely  found  among  persons  of  his  age  who  have  never  been 
afflicted  as  the  testator  was.  There  is  no  evidence  whatever  of 
any  Statement-  made  by  Jackson  or  his  wife   to   the    prejudice   of 

his  brothers  and  Bisters  at  or  at  any  time  before  the  making  of 
the  will.  In  order  to  invalidate  a  will,  there  must  be  evidence 
direct  or  circumstantial  of  a  presenl  operating  restraint  at  the 
time  of  making  it.  Eckerl  v.  Flowry,  43  Pa.  St.  .r>-! ;  Wain- 
wright'e  Appeal,  S9  Pa.  St.  220.     Influences  which  do  not  appear 


160  INDUE   INFLUENCE. — FRAUD. 

to  be  connected  with  the  testamentary  act  are  not  sufficient  to 
impeach  a  will.     McMahon  v.  Ryan,  20  Pa.  St.  329.     If  we  are 

right  in  the  views  we  have  already  expressed,  it  is  wholly  unnec- 
essary  to  consider  the  several  assignments  of  error  in  detail.  The 
plaintiff  has  made  ne  ease  for  the  consideration  of  the  jury,  and, 
as  the  whole  case  must  go  down,  all  questions  incidentally  arising 
dining  the  progress  of  the  trial  go  down  with  it.  The  judgment 
i>  reversed. 

FRAUD.— TESTATOR'S  DECLARATIONS  BEFORE  AND  AFTER 

EXECUTION. 

Griffith  vs.  Diffeiiderffer  et  al. 

Makyland  Court  op  Appeals,  1878. 
(50  Md.  466.) 

Robinson,  J.,  delivered  the  opinion  of  the  court. 

Certain  paper- writings,  purporting  to  be  a  will  of  Sarah  Ann 
Griffith,  deceased,  dated  the  20th  of  December,  1875,  and  a  codi- 
cil attached  thereto,  dated  the  7th  of  March,  1876,  were  offered 
for  probate  in  the  Orphans'  Court  of  Baltimore  City. 

By  these  papers  the  testatrix  gave  to  her  daughters  Emma  Cole- 
man and  Sarah  Ann  Ruddach,  one  thousand  dollars  each,  and 
after  the  payment  of  certain  legacies  of  about  ten  thousand  dol- 
lars to  other  persons,  she  gave  the  rest  of  her  property,  amounting 
to  at  least  one  hundred  and  sixty  thousand  dollars,  to  her  son, 
David  Griffith,  and  her  daughters,  Mary  E.  Farnandis  and  Alverda 
Griffith. 

On  the  petition  of  the  appellees,  grandchildren  of  the  testatrix, 
issues  \n\o\\\\\if  fraud  and  undue  influence  were  sent  to  the  Bal- 
timore City  Court  for  trial;  and  this  appeal  comes  to  us  upon  ex- 
ceptions to  the  rulings  of  the  court  below. 

As  to  the  question  presented  by  the  first  exception  whether  the 
right  of  cross-examination  extends  to  the  whole  case  or  is  limited 
to  the  matters  in  regard  to  which  the  witness  has  been  examined 
in  chief,  there  is  a  difference  between  the  practice  in  this  country 
and  that  which  obtains  in  England.  There,  if  a  witness  is  called 
to  prove  any  facts  connected  with  the  case,  he  becomes  a  witness 
for  all  purposes,  and  the  other  side  may  cross-examine  him  in  re- 
gard to  all  matters  relevant  to  the  issues  before  the  jury. 


DECLARATIONS   BEFORE   AND    AFTER   EXECUTION.        151 

In  this  country  the  Supreme  Court  has  decided  that  this  right 
is  limited  to  facts  and  circumstances  connected  with  the  matter 
stated  by  the  witness  in  his  direct  examination  •  and  if  the  other 
side  proposes  to  examine  him  respecting  other  matters,  they  must 
do  so  bv  making  him  their  own  witness.  Phila.  &  Trenton  R.R. 
Co.  vs.  Simpson,  11  Pet.  IIS ;  Harrison  vs.  Rowan,  3  Washing- 
ton Ct.  Court  580;  Ellmaker  vs.  Brinckley,  16  Leigh  &  Rawle 
77.  And  this  seems  to  us  to  be  the  better  practice.  There  is  no 
good  reason  why  a  witness  called  by  one  side  to  prove  certain  facts 
should  be  considered  a  witness  of  that  side  in  regard  to  other  mat- 
ters fon  ign  l<>  and  in  no  manner  connected  with  the  facts  proven, 
and  which  the  other  side  may  desire  to  offer  in  evidence. 

In  this  case,  however,  the  question  proposed  to  the  witness  is 
strictly  within  the  rule  laid  down  by  the  Supreme  Court.  The 
memorandum  of  instructions  and  the  rough  draft  of  the  will,  and 
the  will  itself,  had  been  offered  in  evidence  by  the  plaintiffs.  The 
witness  Venable  had  referred  to  all  of  these  papers  in  his  direct 
examination;  he  had  testified  that  the  memorandum  of  instruc- 
tions had  been  delivered  to  him  by  Romulus  Griffith,  that  finding 
some  difficulty  in  understanding  it  he  sent  hack  for  fuller  instruc- 
tions, and  that  these  instructions  were  also  communicated  by  Grif- 
fith ;  under  these  circumstances  it  was  competent  on  cross-exam- 
ination to  ask  the  witness  whether  he  made  a  fair  copy  of  the  rough 
draft  embracing  the  additional  instructions  and  submitted  it  to  the 
testatrix,  and  whether  it  was  approved  by  her  as  being  in  con- 
formity with  the  instructions  she  had  given. 

These  facts  were  germane  to,  and  connected  with,  the  circum- 
stances under  which  the  will  w,i>  prepared,  and  in  regard  to  which 
the  witness  had  testified  in  his  examination  in  chief.  We  should 
not,  however,  reverse  the  judgment  on  thi>  ground  because  it  ap- 
pears   in   the  Subsequent    progress  of  the  case  that  the  defendants 

had  the  benefil  of  this  evidence,  and  they  suffered,  therefore,  no 
injury  by  the  ruling  of  the  court. 

In  the  Becond  exception  the  defendants  offered  to  prove  by  the 
same  witness,  thai  the  instructions  for  the  codicil  were  given  to 
him  by  Romulus  Griffith  as  coming  from  the  testal  rix,  what  those 
instructions  were,  and  thai  he  prepared  the  codicil  in  accordance 
with  said  instructions,  and  as  prepared  by  him  it  was  redd  and  ap- 
proved by  the  testatrix.     Bui  the  offer  does  nol   propose  to  con- 


152  UNDUE  INFLUENCE.— FRAUD. 

firm  this  alleged  Btatement  of  Romulus,  by  showing  that  the  -wit- 
ness afterwards  repeated  it  to  the  testatrix,  and  that  she  admitted 
it  to  be  true,  but  only  to  show  that  she  approved  and  executed  a 
codicil  that  had  been  prepared  according  to  her  alleged  instruc- 
tions as  received  by  Romulus.  This  might  be  true,  and  yet  the 
fact  that  the  testatrix  had  directed  Romulus  to  communicate  the 
instructions  would,  after  all,  rest  upon  the  witness'  statement  of 
what  Romulus  told  him.  It  was,  in  fact,  an  attempt  to  prove  by 
the  witness  that  Romulus  told  him  what  the  testatrix's  instruc- 
tions were,  or,  in  other  words,  to  prove  by  the  witness  that  Rom- 
ulus told  him  what  the  testatrix  had  said.  There  wras  no  error, 
therefore,  in  sustaining  the  objection  to  this  question. 

The  questions  arising  under  the  third  exception  are  of  consider- 
able importance  in  the  trial  of  testamentary  cases,  and  not  alto- 
gether free  of  difficulty.  How  far,  and  for  what  purposes,  the 
declarations  of  a  testator,  made  after  the  execution  of  his  will, 
may  be  offered  in  evidence  under  issues  of  fraud  and  undue  in- 
fluence, the  decisions  are  conflicting.  We  do  not  propose  to  ex- 
amine the  many  cases  in  which  the  subject  has  been  considered, 
for  this  has  already  been  done  in  Waterman  vs.  Whitney,  1  Ker- 
nan  168 ;  in  Boy  Ian  vs.  Meeker,  4  Dutcher  274,  and  other  cases, 
and  it  is  unnecessary  for  us  to  do  more  than  state  the  conclusions 
we  have  reached. 

Where  such  declarations  are  made  so  remote  as  not  to  consti- 
tute a  part  of  the  re's  gestae,  they  cannot  be  offered  as  independ- 
ent evidence  to  prove  the  charge  of  fraud,  or  to  show  the  external 
acts  of  undue  influence,  or  attempts  to  influence  the  testator  to 
make  a  will  in  a  particular  direction. 

If  offered  for  this  purpose,  they  are  inadmissible  on  two  grounds. 
1st.  As  mere  hearsay  evidence,  which  by  reason  of  the  death  of 
the  party  whose  statement  is  offered,  can  never  be  explained  or 
contradicted  by  him.  2d.  It  is  inconsistent  with  the  Statute  of 
Frauds  to  permit  a  will  executed  with  all  the  formalities  required 
by  the  statute  to  be  impeached,  or  its  validity  irt  any  manner  im- 
paired by  the  parol  declarations  of  the  testator  made  after  the 
execution  of  the  will. 

But  the  question,  whether  a  will  is  the  free  and  voluntary  act 
of  the  testator,  or  the  offspring  of  fraud,  whereby  his  judgment 
was  misled,  or  of  influences  operating  upon  him,  in  consequence 


DECLARATIONS   BEFORE  AND   AFTER   EXECUTION.       153 

of  which  his  will  was  made  subordinate  to  that  of  another,  depends 
upon  whether  he  had  intelligence  enough  to  detect  the  fraud, 
and  strength  of  will  enough  to  resist  the  influences  brought  to  bear 
upon  him. 

The  character  and  degree  of  the  fraud  practiced,  and  the  influ- 
ence exerted,  involve,  therefore,  necessarily,  to  some  extent,  the 
physical  and  mental  condition  of  the  testator  at  the  time  of  the 
execution  of  the  will.  The  influence  that  would  be  unlawful  if 
exerted  upon  one  advanced  in  years  and  in  declining  health,  of  a 
weak  and  vacillating  will,  might  be  altogether  unavailing  with 
one  in  robust  health  and  of  firm  and  resolute  purpose.  Any  evi- 
dence, therefore,  which  tends  to  prove  the  precise  mental  con- 
dition of  the  testator,  and  to  place  him  before  the  jury  just  as  he 
was  when  the  will  was  made,  is  admissible  ;  and  for  this  purpose 
the  declarations  of  a  testator  may  in  some  cases  be  the  most  satis- 
factory proof.  It  is  a  common  practice  to  admit  such  testimony 
under  issues  involving  testamentary  capacity,  and  upon  the  same 
grounds  it  ought  to  be  received  under  issues  of  fraud  and  undue 
influence,  provided  they  are  made  sufficiently  near  in  time,  as  to 
justify  a  reasonable  inference,  that  the  mental  condition  which 
they  are  intended  to  denote,  existed  at  the  time  of  the  execution 
of  the  will.  Such  evidence,  it  is  true,  may  have  an  effect  beyond 
that  for  which  it  can  legitimately  be  offered  ;  and  although  not 
competent  to  prove  the  facts  upon  which  the  charges  of  fraud  and 
undue  influence  are  founded,  they  may  nevertheless  tend  to  bias 
or  prejudice  the  mind  of  the  jury. 

The  objection,  however,  applies  also  to  other  species  of  evidence, 
which  is  competent  for  one  purpose,  but  not  competent  for  an- 
other, and  if  it  be  admissible  under  the  general  rules  of  evidence, 
we  cannot  exclude  it  on  that  ground. 

We  are  of  opinion,  therefore,  thai  the  declarations  of  the  testa 
trix  to  Mary  Whitman,  in  November,  1*7<>,  "that  she  had  made 
a  will,"  "that  she  was  dissatisfied  with  it,"  "that  she  had  been 
persuaded  to  make  it,"  "thai  she  was  sorry  she  hadn't  let  the  law 
make  a  will  for  her,  as  it  had  for  her  husband,  so  that  the  children 
would  have  shared  alike,1'  "thai  she  had  done  greal  injustice  to 
her    other   children    and    to    her    grandchildren,"     naming    them  ; 

"and  was  troubled  a  I  .out  it,"  and  "  sometimes  tempted  to  destroy 
it,"  and  other  like  declarations  were  admissible  for  the  purpose 


154  UNDUE   INFLUENCE. — FRAUD. 

of  proving  the  mental  condition  of  the  testatrix  at  the  time  of  the 
execution  of  the  will  and  codicil,  but  for  no  other  purpose. 

We  are  of  opinion  also,  that  her  declarations  in  regard  to  her 
testamentary  intentions  made  in  May,  1875,  some  months  before 
the  execution  of  the  will  and  codicil,  and  before  any  improper  in- 
fluence are  supposed  to  have  operated  upon  her,  are  admissible. 
Evidence  of  this  character  may  be  offered  either  to  rebut  the 
charges  of  fraud  and  undue  influence,  by  showing  that  the  will  is 
consistent  with  the  long  cherished  wishes  of  a  testator,  or  that  it 
is  contrary  to  well-settled  convictions  of  what  he  thought  was  a 
just  and  proper  disposition  of  his  property  among  others  standing 
in  the  same  natural  relation  with  those  benefited  by  the  will.  The 
weight  to  be  given  to  such  testimony  is  a  question  for  the  jury. 
Den  mead's  Appeal,  29  Conn.  309;  Converse  vs.  Allen,  4  Allen 
512  ;  Turner  vs.  Clemson,  15  N.  J.  Equity  243. 

We  come  now  to  the  questions  of  law  involved  in  the  instruc- 
tions granted  and  those  refused  by  the  court.  And  here  it  is 
necessary  to  understand  precisely  the  issues  the  jury  had  to  try. 
That  the  will  and  codicil  bore  the  genuine  signature  of  the  testa- 
trix; and  that  she  was  of  sound  mind  and  capable  of  making  a 
testamentary  disposition  of  her  property,  are  admitted.  The 
issues  of  undue  influence  were  abandoned  by  the  plaintiffs,  and 
the  only  questions  before  the  jury  were  whether  the  will  and 
codicil  were  procured  by  fraud.  The  burden  of  proof  was  upon 
the  plaintiffs.  If  they  offered  no  evidence,  or  if  it  was  insufficient 
to  satisfy  the  jury  that  the  papers  offered  for  probate  were  pro- 
cured by  fraud  practised  upon  the  deceased,  then  the  defendants 
were  entitled  to  a  verdict. 

The  court,  however,  instructed  the  jury,  that  if  they  found 
certain  facts  set  forth  in  the  plaintiffs'  first  prayer,  the  burden  of 
proof  was  upon  the  defendants  to  satisfy  the  jury,  that  the  will 
and  codicil  were  in  all  respects  the  free,  voluntary  and  intelligent 
acts  of  the  testatrix,  and  if  they  failed  to  do  so,  the  plaintiffs  were 
entitled  to  a  verdict.  In  other  words,  assuming  these  facts  to  be 
true,  the  burden  of  proof  which  originally  rested  upon  the  plain- 
tiffs, was  shifted  to  the  defendants.  This  was  equivalent  to  saying, 
that  the  facts  enumerated  in  the  prayer  amounted  in  law  to  a 
presumption  of  fraud,  because  on  no  other  ground  could  a  jury 
find  a  verdict  for  the  plaintiffs. 


DECLARATIONS   BEFORE   AND    AFTER   EXECUTION.        155 

Now  what  are  the  facts  thus  relied  on  to  support  this  presump- 
tion ? 

First,  that  Romulus  Griffith  was  the  son-in-law,  agent  and 
attorney-in-fact  of  the  testatrix,  and  entrusted  with  the  manage- 
ment of  her  affairs ;  that  he  employed  his  own  counsel  to  draw 
the  will  and  codicil,  was  consulted  by  the  testatrix  as  to  the  making 
of  said  instruments,  and  otherwise  took  an  active  part  in  the  prep- 
aration and  execution  of  the  same,  by  which  his  wife  and  him- 
self were  largely  benefited.  And  it  is  insisted,  that  the  doctrine 
recognized  by  courts  of  equity,  in  dealing  with  matters  of  gift 
and  contract,  between  parties  standing  in  a  fiduciary  relation  to 
each  other,  should  be  applied  if  not  in  its  broadest  sense,  yet  in 
some  qualified  manner  to  gifts  under  wills.  It  is  true,  that  such 
courts  always  watch  with  suspicion,  transactions  between  persons 
.-funding  in  this  relation,  and  although  such  transactions  are  not 
treated  as  altogether  void,  yet  the  burden  of  proof  is  upon  the 
party  holding  the  relation  to  show,  that  the  influence  necessarily 
arising  from  the  confidence  thereby  reposed,  has  not  been  abused. 
And  hence  it  is,  that  in  gifts  inter  vivos  between  such  persons,  it 
is  incumbent  on  the  donee  to  show,  that  it  was  the  free  and 
voluntary  act  of  the  donor.  But  there  is  an  obvious  difference 
between  a  gift,  whereby  the  donor  strips  himself  of  the  enjoy- 
ment of  his  property  whilst  living,  and  a  gift  by  will,  which  takes 
effect  only  from  the  death  of  the  testator.  And  in  Parfitt  vs. 
Lawless,  Law  Rep.,  Probate  and  Divorce,  vol.  2,  468,  where  the 
testatrix  gave  all  her  property  to  a  Catholic  priest,  her  confessor, 
it  was  expressly  decided,  that  the  doctrine  of  confidential  relations 
as  recognized  by  courts  of  equity,  in  dealing  with  gifts  or  con- 
tracts inter  VIVOS,  had  no  application  to  gifts  under  a  will. 

Lord  Penzance  says :  "In  the  cases  of  gifts  or  other  trans- 
actions inter  vivos,  it  is  considered  by  courts  of  equity,  thai  the 
natural  influence  which  such  relations  as  those  in  question  invoh  e, 
exerted  by  those  who  possessit,  to  obtain  a  benefit  for  themselves, 
i  in  width  influence.  The  law  regarding  wills  is  very  differenl 
from  this.  The  natural  influence  of  the  parenl  or  guardian  <>\er 
the  child,  <>r  the  husband  over  the  wife,  or  tin'  attorney  oyer  the 
client,  may  lawfully  he  exerted  ti>  obtain  a  will  <>r  legacy,  bo  long 

a-  the  testator   thoroughly  understands  what    he  is  doing,  and  is  a 

free  agent." 


[56  INDUE  INFLUENCE. — FRAUD. 

But  in  addition  to  the  relation  which  Romulus  Griffith  bore  to 
the  testatrix,  we  have  the  further  fact,  that  he  was  consulted  by 
her  in  regard  to  making  the  will,  that  he  employed  his  own 
counsel  to  draw  it,  and  that  his  wife  and  himself  were  largely 
benefited  by  it.  The  fact  that  a  party  is  largely  benefited  by  a 
will  prepared  by  himself,  or  in  the  preparation  of  which  he  takes 
an  active  part,  is  nothing  more  than  a  suspicious  circumstance,  of 
more  or  less  weight,  according  to  the  facts  of  each  particular  case. 
If  the  testamentary  capacity  be  doubtful,  or  if  the  party  bene- 
fited be  a  stranger  not  allied  by  ties  of  kindred  to  the  testator, 
these  and  other  like  facts  would  tend  of  course  to  increase  the 
suspicion. 

They  are,  however,  but  facts  and  circumstances  to  be  con- 
sidered by  the  jury  in  determining  the  question  of  fraud.  But 
fraud  in  this  case  being  a  question  of  fact  to  be  found  by  the 
jury,  and  not  one  of  law  to  be  inferred  by  the  court,  it  was  error 
to  instruct  the  jury  that  the  facts  thus  relied  on  by  the  plaintiffs 
created  a  presumption  of  fraud,  or  in  any  manner  affected  the 
burden  of  proof,  which  from  the  beginning  to  the  end  of  this 
case  rested  upon  the  plaintiffs. 

Then  again,  whatever  suspicions  these  facts  might  excite,  or 
whatever  explanation  they  might  require,  the  undisputed  facts 
show  not  only  that  the  testatrix  was  fully  competent  to  make  a 
will,  but  that  the  papers  offered  for  probate  were  read  and  ex- 
plained to  her,  and  that  she  expressed  herself  fully  satisfied  with 
their  contents.  Whatever  suspicion,  therefore,  the  facts  thus 
relied  on  might  have  excited,  it  was  fully  explained  and  removed 
by  the  uncontradicted  evidence  offered  by  the  defendants.  And 
it  is  no  answer  to  say,  that  an  instruction  to  that  effect  might  have 
been  asked  by  the  defendants.  It  was  misleading  the  jury  to  say 
that  certain  facts  tended  to  create  a  presumption  of  fraud,  and 
therefore  to  shift  the  burden  of  proof  upon  the  defendants,  if 
other  facts  in  regard  to  which  there  was  no  conflict,  showed  that 
no  such  presumption  could  arise. 

But  then  again  it  is  said,  there  is  a  material  variance  between 
the  will  and  the  written  memorandum  of  instructions,  and  this 
also  is  relied  on  as  evidence  of  fraud.  The  testatrix  was  entitled 
to  commissions  amounting  to  about  seven  thousand  dollars  from 
her  husband's  estate.     By  her  will,  she  gave  to  Romulus  Griffith 


DECLARATIONS  BEFORE  AND  AFTER  EXECUTION.   157 

and  wife  a  sum  equal  in  amount  "  to  the  commissions  which  she 
should  receive  during  her  life,  and  be  entitled  to  at  the  time  of 
her  death.''  By  the  memorandum  of  instructions,  she  gave  to 
Griffith  and  wife  "  her  portion  of  the  commissions  on  her  hus- 
band's estate,  if  the  said  estate  should  not  have  been  settled  and 
commissions  received  before  her  death."  And  it  is  insisted,  that 
even  if  the  testatrix  had  received  these  commissions  in  her  life- 
time, and  had  paid  them  to  Griffith  and  wife,  yet  they  would  be 
entitled  under  the  will  to  an  additional  equal  sum  at  her  death. 
Now,  if  it  be  conceded  that  there  is  a  variance  between  the  will 
and  the  memorandum  in  this  respect,  there  is  not  a  particle  of 
evidence  to  show  that  it  was  made  with  a  fraudulent  purpose. 
The  will  was  drawn  by  the  witness  Venable,  and  he  says,  if  there 
is  a  variance  it  was  altogether  unintentional  on  his  part,  and  arises 
from  an  unhappy  use  of  language.  The  appellants  expressly  dis- 
claim any  intention  to  impute  improper  motives  to  him,  and  if  this 
variance  escaped  his  attention,  a  lawyer  and  draftsman,  it  would 
be  unjust  and  unreasonable  to  impute  knowledge  of  it  to  Romulus 
Griffith,  because  the  will  was  read  in  his  hearing.  Taking,  there- 
fore, all  these  facts  together,  and  adding  thereto  every  fair  and 
reasonable  inference,  we  are  of  opinion  that  they  are  not  sufficient 
to  create  a  presumption  of  fraud,  or  to  shift  the  burden  of  proof 
from  the  plaintiffs  to  the  defendants. 

Jn  addition  to  this,  the  instruction  was  clearly  erroneous,  in 
submitting  to  the  jury  under  the  circumstances  surrounding  this 
case,  the  question  whether  the  testatrix  fully  understood  the  pro- 
visions and  effect  of  the  will  and  codicil.  Knowledge  of  its  con- 
tents is.  of  course,  essential  to  the  validity  of  every  will,  but 
where  the  testamentary  capacity  is  unquestioned,  such  knowledge, 
as  a  general  rule,  will  be  inferred  from  the  execution  of  the  will 
itself.  If  there  be  suspicious  circumstances  surrounding  the  prep- 
aration and  execution  of  a  will  tending  to  rebut  this  presump- 
tion, it  may  be  proper  to  require  additional  proof  of  some  kind 
that  the  testator  did  in  facl  understand  its  contents.  But  in  this 
case  it  wa-  qoI  only  admitted  thai  the  testatrix  was  of  sound  mind 
and  capable  of  making  a  will,  but  the  evidence  shows  thai  both 
the  will  and  eodieil  were  read  and  explained  to,  and  approved  by 
her.  Under  buc!i  rireumstauees  as  these,  the  law  imputes  knowl- 
edge, and  the  door  of  inquiry  is  closed.     There  may  be  excep- 


1")8  UNDUE  INFLUENCE. — FRAUD. 

t  ions  to  this  rule,  it  is  true,  arising  in  cases  of  fraud  practised 
upon  a  testator  in  the  preparation  and  execution  of  his  will,  but 
it  is  not  alleged  here  that  one  instrument  was  prepared  and  read 
to  the  testatrix,  and  another  and  a  different  one  substituted  in  its 
plaee;  nor  is  it  alleged  that  any  fraud  was  practised  in  reading 
the  will  or  codicil.  On  the  contrary,  these  papers  were  read 
to  her,  line  by  line,  just  as  they  were  written ;  and  being  in 
the  full  possession  of  all  her  faculties,  there  is  nothing  to  ex- 
cept  this  ease  from  the  operation  of  the  general  rule  as  we  have 
stated  it. 

Then  again,  there  is  another  objection  to  this  prayer,  and  one 
which  applies  with  equal  force  to  the  third  prayer.  Whether  the 
will  and  codicil  were  procured  by  fraud,  were  questions  of  fact 
to  be  found  by  the  jury,  and  not  questions  of  law  to  be  inferred 
or  presumed  by  the  court.  The  affirmative  of  the  issue  was  upon 
the  plaintiffs,  and  these  instructions  assume  that  if  evidence  is 
offered  sufficiently  strong  to  make  out  a  prima  facie  case  of 
fraud,  the  burden  of  proof  was  shifted  to  the  defendants,  and 
unless  they  offered  evidence  rebutting  the  prima  facie  case  thus 
made,  the  jury  were  obliged  to  find  that  the  will  and  codicil 
were  procured  by  fraud.  The  court  thus  undertook  to  say,  as 
matter  of  law,  that  the  plaintiffs  had  proved  the  affirmative,  or, 
in  other  words,  had  proved  that  the  will  and  codicil  were  pro- 
cured by  fraud,  instead  of  leaving  this  question  to  be  found  by 
the  jury.  Whether  the  defendants  offered  any  evidence  or  not, 
the  affirmative  of  the  issue  was  none  the  less  ultimately  upon  the 
plaintiffs,  and  it  was  incumbent  on  them  to  satisfy  the  jury  that 
it  had  been  established.  To  entitle  the  plaintiffs  to  a  verdict,  the 
jury  must  find  as  matter  of  fact  that  the  will  and  codicil  were 
procured  by  fraud. 

The  second  prayer  is  based  upon  the  theory,  that  the  testatrix 
was  induced  to  discriminate  in  her  will  and  codicil  against  certain 
of  her  children  and  grandchildren,  in  consequence  of  false  repre- 
sentations made  to  her  by  those  benefited  by  the  will  and  codicil, 
such  persons  knowing  that  these  representations  were  false,  and 
knowing  that  they  would,  and  intending  that  they  should,  influence 
the  testatrix  in  making  this  discrimination.  In  other  words,  that 
a  downright  fraud  was  practised  upon  her,  in  consequence  of 
which,  certain  members  of  her  family  were  excluded  from  a  fair 


DECLARATIONS  BEFORE  AND  AFTER  EXECUTION.   159 

participation  in  her  property.  Objection  is  made  to  this  prayer 
in  the  first  place,  on  the  ground  that  there  was  no  evidence  to 
warrant  the  court  in  submitting  to  the  jury  the  finding  of  the 
facts  on  which  it  is  based.  It  is  not  the  office  of  a  judge  to 
weigh  or  balance  conflicting  evidence,  however  strongly  the  evi- 
dence on  the  one  side  may  preponderate.  That  is  the  duty  of  the 
jury.  If  no  evidence  is  offered,  or  if  it  is  not  such  as  one  in 
reason  and  fairness  could  find  from  it  the  facts  sought  to  be  estab- 
lished, the  court  ought  not  to  submit  the  finding  of  such  facts  to 
the  jury.  Without  meaning  to  intimate  any  opinion  in  regard  to 
the  weight  of  the  evidence,  or  the  conclusion  a  jury  ought  to 
draw  from  it,  it  was  sufficient,  I  think,  to  warrant  the  court  in 
submitting  the  facts  set  forth  in  this  prayer  to  the  jury.  Upon 
this  question  the  judges  who  heard  this  case  are  equally  divided 
in  opinion,  and  the  prayer  would,  therefore,  be  affirmed  by  a 
divided  court,  but  for  one  or  two  minor  objections  in  regard  to 
which  we  all  agree. 

Where  a  will  is  assailed  on  the  ground  of  false  representations 
instilled  into  the  mind  of  the  testator,  it  must  appear  that  such 
representations  were  made  for  the  purpose  of  influencing  the 
testator  in  making  his  will.  Now,  in  this  prayer,  the.  jury  are 
required  to  find  that  the  representations  therein  set  forth,  were 
made  for  the  purpose  of  influencing  the  testatrix  in  making  Tier 
will,  but  they  are  not  required  to  find  that  they  were  made  for 
this  purpose  in  regard  to  the  codicil. 

Then  again  it  instructs  the  jury  if  they  find  certain  facts,  "  they 
iiKii/fliid  thai  the  will  and  codicil  were  obtained  by  fraud,"  and 
their  verdict  u7nust"  be  for  the  plaintiffs.  In  order  to  avoid 
any  misconstruction,  it  should  have  been  qualified  by  adding  after 
the  words  "were  obtained  uy  fraud '"  the  words  "and  if  they 
shattsojmd"  their  verdict  must  be  for  the  plaintiffs.  As  the 
case  will  be  remanded  for  a  new  trial  the  prayer  in  these  respects 
can  be  corrected. 

It  was  also  urged,  thai  the  several  prayers  offered  by  the  plain- 
tiffi  were  erroneous,  because  they  assume  if  fraud  was  practised 
upon  the  testatrix  in  making  her  will  and  codicil,  the  entin  will 
and  codicil  were  void,  although  il  might  appear  from  the  evidence, 
that  the  fraud  affected  only  certain  parts  of  the  will  and  codicil. 
And  it  w.i-  insisted,  thai   if  the   fraud  did  doI  affecl   the  entire 


ICO  UNDUE   INFLUENCE. — FKAUD. 

will  and  codicil,  the  jury  by  their  verdict  should  have  segregated 
the  parts  thus  atfected  by  the  fraud.  This  is  a  question  of  import- 
ance, and  so  far  as  our  information  extends,  is  now  for  the  first 
time  raised  in  this  court.  Whether  under  proper  issues  framed 
for  the  purpose  of  presenting  the  question,  a  jury  may  find  part 
of  a  will  void  on  account  of  fraud  and  another  part  good,  it  is 
unnecessary  for  us  to  decide.1  No  such  issue  was  sent  by  the 
Orphans'  Court  to  the  court  below  for  trial,  and  the  question  is 
not,  therefore,  presented  by  this  record.  The  issues  before  the 
jury  were,  whether  the  will  and  codicil  were  procured  by  fraud  % 
And  their  verdict  must,  of  course,  be  responsive  to  these  issues. 
"Where  a  will  is  assailed  on  the  ground  of  fraud  and  undue  influ- 
ence, if  it  is  proposed  that  the  jury  shall  find  whether  such  fraud 
and  undue  influence  affects  the  whole  will  or  certain  parts  only, 
and  what  parts,  it  seems  to  us,  there  ought  to  be  a  separate  issue 
framed  presenting  directly  that  question  to  the  jury. 

The  plaintiffs'  fourth,  fifth,  and  sixth  prayers  announce  well 
settled  principles,  and  there  was  no  error  in  granting  them. 

The  issues  of  undue  influence  having  been  abandoned  and  no 
longer,  therefore,  before  the  jury,  the  court  properly  refused  to 
instruct  the  jury  in  regard  to  the  law  applicable  to  such  issues. 

There  was  error  in  granting  the  plaintiffs'  first  and  third 
prayers,  and  also  in  granting  the  second  as  it  was  presented,  and 
the  judgment  will  be  reversed  and  a  new  trial  awarded. 

Judgment  reversed,  and  new  trial  awarded. 

(Decided  7th  February,  1879.) 

UNDUE  INFLUENCE.— ADMISSIONS  OF  LEGATEE. 
L<a  Bau  v.  Vanderbilt. 

Surrogate's  Court,  New  York  County,  New  York,  1877. 

(3  Redf.  384.) 

Application  for  revocation  of  probate  of  the  will  of  Cornelius 
Vanderbilt.  The  report  gives  a  number  of  separate  opinions 
rendered  at  different  stages  of  the  proceeding,  on  distinct  ques- 
tions. The  question  upon  which  the  following  opinion  was 
rendered,  was  whether  the  declarations,  or  admissions,  of  one 

1  This  may  be  done,  if  the  illegal  part  is  separable.  1  Jarman  on  Wills 
(Randolph  &  T.'s  ed.)  36  ;  Billinghurst  v.  Vickers,  1  Phillim.  187. 


ADMISSIONS   OF  LEGATEE.  161 

legatee,  tending  to  show  undue  influence,  or  lack  of  testamentary 
capacity,  were  to  be  admitted  to  support  the  contest. 

Calvin,  S. — The  apparent  irreconcilability  of  the  authorities 
bearing  upon  the  subject,  has  caused  some  embarrassment  in 
deciding  the  question  raised,  and  will  justify  a  full  statement  of 
the  cases  so  far  as  they  are  applicable. 

In  Beall  v.  Cunningham  (1  B.  Mon.  399)  it  was  held  that  the 
admission  of  one  of  several  devisees,  obviously  against  his  interest, 
that  the  decedent  had  given  him  the  paper  propounded  as  a  form 
of  will,  and  told  him  "  that  it  was  a  mere  form,  which  he  might 
dispose  of  as  he  pleased,'1  was  admissible.     In  Bogers  v.  Rogers 
(2  B.  Mon.  324),  in  an  action  contesting  the  validity  of  a  will  the 
circuit  judge  had  refused  to  permit  proof  of  conversations  in 
which  the  principal  devisee  stated  a  desire    to  own  his  father's 
homestead,  and  of  another  conversation  in  which  said  devisee 
remarked :    "  We  have  had  too  much  trouble  and  difficulty  in 
getting  this  will,  to  attempt  getting  another."     On  the  authority 
of  Beall  v.  Cunningham  {above)  the  court  on  appeal  held  the 
testimony  competent,  and  also  stated  the    English  practice   of 
receiving  admissions  by  one  parishioner  against  the  whole  parish- 
ioners, where  the  question  involved  was  common  to  all,  as  one 
could  not  be  compelled  to  testify  against  himself  and  associates  ; 
and  said  the  courts  of  Massachusetts  and  Pennsylvania  had  virtually 
applied  the  same  rule  in  wills  cases.     But  the  decree  was  affirmed 
notwithstanding  the  alleged  error,   because  the  appellate  court 
concluded  that  the  party  was  not  injured  by  the  exclusion.      In 
Fairchild  v.  Baseomb  (34  Vt.  398)  evidence  that  a  legatee  stated 
to  one  of  his  brothers  (one  of  the  contestants  of  the  will),  that  he 
did  not  know  that  the  deceased  had   made  a  will,  and   thai   about 
a  week   after,  he  stated   to  another  brother   the  contents  of  the 
will,  contrary  to  the  fact  less   favorable  to  him,  was  received,  it 
appearing  thai  -aid  legatee  was  present  at  the  execution  o\  the 
will,  and  that  he  was  sole  legatee.     In  Atkins  v.  Sanger  (18  Mass. 
L92)   evidence  was  admitted  of  the  declaration   of   one  oi  the 
6X(  CUtore  and  a  legatee,  as  to  facts  which  occurred   at  the  time  01 
making  the  will. 

In    Phelps  v.   Ilartwell  (1  Mass.  11)  testimony  was  offered  to 
prove  a  declaration  of  one  of  the  legatees,  giving  his  opinion  that 

the  testator  at  the  time  of  making  his  will  was  not  of  sound  mind. 

II 


\(\-2  UNDUE   INFLUENCE. — FRAUD. 

Sedgwick,  J.,  said  that  if  the  appellee  who  made  the  declaration 
were  solely  interested  in  establishing  the  will,  he  should  be  in  fa- 
vor  of  admitting  the  evidence,  because  he  thought  that  evidence 
of  opinions  formed  at  the  time  might  be  fairly  presumed  to  be 
among  the  best  means  of  informing  a  party  as  to  the  real  state  of 
the  testator's  mind,  but  as  the  other  appellee  was  interested  in  the 
establishment  of  the  will,  it  would  not  be  proper  to  admit  the  evi- 
dence offered.  In  Davis  v.  Calvert  (5  Gill  &  Johns.  2G9),  on  a 
bill  filed  by  one  of  the  next  of  kin  against  the  probate  of  a  will, 
the  plaintiff  offered  to  show  that  the  executor  who  propounded 
the  will,  in  a  conversation  a  few  days  after  the  death  of  deceased, 
declared  that  though  he  had  promised  the  deceased  to  provide  for 
certain  children,  he  did  not  consider  himself  bound  to  do  so,  be- 
cause he  was  convinced  that  they  were  not  children  of  the  de- 
ceased. The  evidence  was  rejected.  But  this  was  held  error,  the 
court  saying:  "Calvert  being  executor  and  contingent  devisee, 
representing  every  interest  under  the  will,  and  being  also  defend- 
ant on  the  record,  evidence  of  any  relevant  declarations  or  admis- 
sions by  him,  adverse  to  the  will,  and  bearing  upon  the  issues,  or 
any  of  them,  ought  to  have  been  admitted ;  the  rule  being  that 
the  admission  of  a  party  to  the  record  is  always  evidence,  though 
he  be  but  a  trustee  for  another,  with  certain  exceptions  not  appli- 
cable to  this  case. 

In  Lewis  v.  Mason  (109  Mass.  169)  it  was  held  that  on  the  ques- 
tion of  undue  influence  the  statement  of  deceased's  children  made 
in  his  lifetime  to  another  child,  that  such  child  should  not  stay  in 
the  testator's  house,  and  that  they  had  got  the  testator  where  they 
wanted  him,  was  admissible,  for  the  reason  that  it  had  some  tend- 
ency to  show  a  purpose  upon  the  part  of  the  former  to  keep  the  tes- 
tator under  their  supervision  and  control, and  exclude  the  other  mem- 
bers of  the  family  from  any  opportunity  to  interfere.  This  statement 
seems  to  have  been  made  prior  to  the  execution  of  the  will.  In 
Peebles  v.  Stevens  (8  Rich.  198)  it  was  held  that  where  executors 
and  legatees  propounded  the  will  for  probate,  their  declarations, 
as  well  after  as  before  the  execution  of  the  will,  might  be  given  in 
evidence  by  the  next  of  kin.  The  court  held  them  competent 
testimony,  because  they  were  from  parties  to  the  cause,  and  might 
be  used  by  the  adverse  party,  those  making  them  having  a  ioint 
interest  and  representing  all  the  rights  and  interest  of  the  testa- 


ADMISSIONS   OF  LEGATEE.  163 

trix  and  of  her  legatees.     Some  members  of  the  court  concurring 
in  the  result,  put  their  decision  principally  upon  the  ground  that 
a  confederacy  had   been   shown   between  the  executors,  and  that 
the  admission  of  one  confederate   bound  the  others.     (See  also 
Durant   v.  Ash  more,  2  Rich.  184.)     In   Harvey  v.  Anderson  (12 
Ga.  69)  the  general  rule  was  stated  to  be  that  the  declarations  of 
a  party  to  the  record,  or  of  one  identified  in  interest  with  him 
therein,  were,  as  against  such  party,  admissible  in  evidence,  and 
that   this   rule   applied   to   all   cases  where   he  had  any  interest, 
whether  others  were  joint   parties  on  the  same  side  with  him  or 
not,  and  whatever  might  be  its  relative  amount.     In  Williamson 
v.  Naburs  (14  Ga.  286),  where  the  admissions  of  an  executrix  and 
legatee  of  a  life  interest,  and  the  proponent  of  the  will,  were  held 
competent  evidence  on  the  trial  of  a  caveat  to  that  will,  Starnes, 
J.,  said  there  was  a  conflict  of  opinion  in  the  adjudicated  cases  on 
this  subject ;  but  held  the  case  of  Harvey  v.  Anderson  {above)  made 
the  question  res  adjttdicata,  and  that  it  was  specially  in  that  case 
reasonable   that  admissions  by  one  who  was  executrix,  who  took 
the  whole  property  for  life,  and  was  proponent  of  the  will,  could 
not  have  been   made  against  this  strong  interest  and  bias  for  the 
purpose  of   prejudicing  the   legatees  in  remainder,  or  from  any 
other  motive  than  truth.     So  in   Brown  v.  Moore  (6  Yerger  272) 
the  declarations  of  one  of  several  devisees  that  the  will  had  been 
unduly  or  fraudulently  procured  to   be  made,  were  held  admis- 
sible. 

In  Smith  v.  Morgan  (2  Moody  &  Bob.  257)  it  was  held  (bat  the 
declarations  of  an  assignee,  made  before  his  appointment  as  such, 
were  competent,  but  Fenwick  v.  Thornton  (M.  &  M.  51)  is  cited 
in  Williams  on  Executors,  as  contrary  to  this  doctrine.  "  It  may 
be  doubted,"  says  the  author  (p.  1612),  "whether  admissions 
made  by  an  executor  or  administrator  before  he  was  clothed  with 
th.it  character  are  receivable  in  evidence  aarainsl  him  in  an  action 
brought  by  or  against  him,  in  his  representative  capacity." 

In  Clapp  v.  Fullerton  (34  X.  V.  L90)  the  will  was  pro] nded 

by  the  principal  legatee  and  contested  on  the  ground  of  testator's 
imbecility  or  lunacy,  and  of  undue  influence  on  the  part  of  the 
proponent  -the  proponent  and  contestant  being  daughters  of  the 
deceased  it  being  alleged  thai  the  contestant  received  but  an  in- 
significant legacy, because  deceased  was  laboring  under  the  insane 


104  UNDUE  INFLUENCE. — FRAUD. 

delusion  that  the  contestant  was  illegitimate.  It  was  proved  by  a 
declaration  of  the  proponent  that  this  suspicion  had  its  origin  in 
the  mind  of  her  father  nearly  two  years  before  his  death,  and  in 
the  interim  between  the  execution  of  the  instrument  propounded 
and  of  a  prior  will.  It  does  not  appear  at  what  period  this  ad- 
mission of  the  proponent  wras  made.  It  also  appears  that  the  pro- 
ponent after  the  testator's  death  intimated  to  a  witness  that  her 
mother  had  been  too  intimate  with  her  father's  brother.  This 
testimony  seems  not  to  have  been  objected  to,  nor  is  the  question 
of  its  admissibility  discussed  by  the  court,  which  affirmed  the  de- 
cree of  the  Surrogate.  The  evidence  must  have  been  given  by 
the  contestant  for  the  purpose  of  showing  the  undue  influence  ex- 
ercised by  the  proponent  upon  the  deceased  to  induce  him  to  cut 
off  her  sister,  and  therefore,  though  the  evidence  were  improperly 
admitted  by  the  Surrogate,  its  admissibility  could  not  have  been 
considered  on  an  appeal  by  the  party  who  gave  it. 

In  Brick  v.  Brick  (66  N.  Y.  144)  the  declarations  of  deceased's 
wife,  the  sole  legatee,  made  several  years  after  the  execution  of 
the  instrument  propounded,  were  received,  but  the  language  of  the 
opinion  of  Judge  Rapallo,  in  that  case  is,  "all  these  declarations 
were  made  in  1864,  and  there  is  no  proof  of  any  attempt  prior  to 
the  date  of  the  will  to  interfere  with  the  intercourse  between  the 
brothers."  Julke  v.  Adam  (1  Redf.  454)  was  a  case  where  the 
declarations  of  the  widow  of  the  deceased,  against  whom  undue 
influence  was  charged,  were  received.  The  Surrogate  admitted 
the  testimony  as  tending  to  prove  an  existing  intent  and  dispo- 
sition, citing  Brush  v.  Holland  (3  Bradf.  240).  In  that  case  the 
contestants  sought  to  introduce  proofs  of  the  declarations  of  the 
decedent's  widow,  to  show  incapacity  and  the  exercise  of  undue 
influence,  the  widow  being  a  legatee  and  executrix.  The  Sur- 
rogate excluded  the  admission  as  such ;  but  as  it  had  some  bear- 
ing upon  the  motives  and  dispositions  of  the  persons  charged 
with  procuring  the  will,  he  was  unwilling  to  say  that  in  that  view 
and  bearing  it  was  entirely  inadmissible.  The  declaration  in  that 
case  by  the  widow  of  her  intention  to  control  the  deceased  in  the 
making  of  his  will,  was  made  prior  to  the  execution  of  the  will. 
In  Horn  v.  Pullman  (10  Hun  471)  [see  s.  c.  72  N.  Y.  269 
(279)]  probate  was  contested  on  the  ground  of  mental  inca- 
pacity, fraud,  and  undue  influence.     The  sole  beneficiaries  were 


ADMISSIONS    OF   LEGATEE.  165 

Mr.  and  Mrs.  Pullman,  and  the  Surrogate  rejected  the  admis- 
sion of  Mrs.  Pullman,  that  she  thought  what  property  the 
testator  had  when  he  was  done  with  it  ought  to  he  willed  to 
her  and  her  husband,  and  that  they  were  going  to  have  it,  too; 
also  evidence  that  she  said  that  they  had  got  the  property, 
and  had  it  so  fixed  that  if  the  children  of  deceased  contested  the 
will,  they  would  have  to  pay  their  own  cost;  that  they  had  con- 
sulted a  physician  beforehand  to  see  if  he  was  competent  to  make 
a  will,  and  that  he  was  a  nice  old  man,  and  would  do  anything 
she  asked  him  to.     This  rejection  was  held  error. 

In  Dan  v.  Brown  (4  Cow.  483)  it  was  held  that  the  admissions 
of  the  plaintiff  or  defendant,  will  in  general  affect  none  but  him- 
self, and  not  his  co-plaintiff  or  co-defendant  unless  they  are  his 
partners;  that  in  partition  by  several  tenants  in  common  against 
others,  where  the  plea  was  non  tenent  insimul,  the  admissions  of 
one  of  the  plaintiffs  that  a  will  was  lost  could  not  be  received  to 
affect  his  co-plaintiff,  and  that  the  confessions  of  one  tenant  in 
common  of  lands,  is  not  evidence  against  his  co-tenant. 

In  Hammon  v.  Huntley  (4  Cow.  493)  it  was  held  that  confes- 
sion by  an  executor  of  a  debt  due  from  his  testator  is  not  admis- 
sible as  evidence  in  a  suit  for  debt  against  his  co-executor  to 
establish  the  original  demand.  (And  see  James  v.  Ilackley,  16 
Johns.  273;  Whitney  v.  Ferris,  10  Id.  6Q]  Forsyth  v.  Ganson,  5 
Wend.  55S ;  Osgood  v.  Manhattan  Co.,  3  Cow.  612.) 

In  Bovard  v.  Wallace  (4  Sergt.  &  Rawle  499),  which  was  a 
feigned  issue  to  try  the  validity  of  a  will,  the  defendants  offered 
to  prove  that  one  of  the  devisees  had  declared  that  the  testator, 
at  the  time  of  executing  that  writing,  was  incapable  of  making  a 
will,  which  evidence  was  excluded  as  incompetent,  and  the  rilling 
sustained  on  appeal.  And  in  Nussear  v.  Arnold  (13  S.  &  R.  323), 
the  declaration-  of  the  principal  devisee  that  the  testator  was  in- 
Capable  of  making  a  will  were  received  in  evidence  ;   but  on  appeal 

the  exception  taken  to  the  evidence  was  sustained. 

The  same  rule  w&a  followed  in  Eauberger  v.  Root  (•;  Watte  & 
Serg.  431  ;  Dietrich  v.  Dietrich,!  Watts  167;  Boyd  v.  Ebly,  8 
W-.it-  66;  Clark  v.  Morrison,  -j:»  Penn.  St.  453;  Titlow  v.  Tit- 
low,  :.  I  Id.  216;  Dotts  v.  Feltzer,  '•>  Id.  88).  'Hie  rule  in  Massa- 
chusetts is  the  same,  it  being  held  thai  devisees  and  legatees  have 

not,   that  joint   interest    in   the   will    which   will   make  the  admis- 


166  UNDUE  INFLUENCE. — FRAUD. 

sions  of  one,  though  he  be  a  party  to  the  record,  admissible  against 
the  other  legatees.  (Shailer  v.  Bumstead,  99  Mass.  112  [given 
ank\  ;  and  in  Alabama,  Blakey  v.  Blakey,  33  Ala.  611;  and  in 
West  Virginia,  Forney  v.  Ferrell,  1  West  Ya.  729;  and  in  Ohio, 
Thompson  v.  Thompson,  13  Ohio  St.  356  ;  and  in  Georgia,  Morris 
v.  Stokes,  21  Ga.  552.)  The  reasoning  and  result  of  the  last  case 
go  far  towards  overruling  the  earlier  Georgia  case  above  referred 
to — certainly  as  applicable  to  the  case  under  consideration. 

I  think  it  must  be  conceded  in  this  case  that  the  will  in  ques- 
tion must  stand  or  fall  in  all  its  provisions,  and  that  there  is 
neither  in  the  proof  offered  or  the  allegations  filed,  on  the  theory 
of  >either  of  the  counsel,  any  warrant  for  the  suggestion  that  it 
may  be  admitted  to  probate  as  to  one  or  more  of  its  provisions, 
and  be  rejected  as  to  any  of  the  others.  Indeed,  I  understand 
this  view  to  have  been  acquiesced  in  by  all  the  learned  counsel  in 
this  case,  where  the  admissibility  of  proof  tending  to  show  undue 
influence  exercised  upon  the  mind  of  the  testator  against  his  son 
Cornelius  J.,  though  not  a  contestant,  was  under  consideration. 
For  the  purpose  of  the  admissibility  of  the  declarations  of  a  leg- 
atee, after  the  execution  of  the  instrument  propounded,  it  must 
be  admitted  that  they  would  affect  the  will  as  a  whole,  and  the 
interest  of  the  respective  legatees  alike. 

As  the  question  submitted  is  one  of  great  importance  in  this 
case,  and  of  general  interest  in  probate  cases,  and  has  been  argued 
with  great  earnestness  and  ability  by  the  learned  counsel  for  the 
respective  parties,  I  have  deemed  it  my  duty,  especially  as  the 
authorities  directly  upon  the  point  are  so  few  in  this  State,  to 
thoroughly  examine  each  case  cited  by  counsel,  and  such  as  my 
own  researches  have  enabled  me  to  find,  together  with  the  ele- 
mentary  treatises  upon  the  subject,  as  this  case  in  its  ultimate  re- 
sult will  be  likely  to  settle  the  question  for  the  future. 

It  seems  to  me  that  the  wTeight  of  authority  is  against  the  ad- 
missibility of  the  declarations  of  one  party  to  affect  the  rights  of 
another,  unless  such  parties  be  jointly  interested,  by  which  each 
party  is  authorized  to  speak  and  act  for  the  whole,  or  there  is 
proof  of  a  combination,  in  which  case  a  conspirator  may  speak 
for  all  his  confederates.  But  in  the  latter  case,  a  conspirator,  by 
his  admissions  or  declarations,  can  only  affect  his  co-conspirators, 
and  if  his  admissions  or  declarations  cannot   but   affect   other 


ADMISSIONS    OF   LEGATEE.  167 

parties  not  confederated,  such  admissions  and  declarations  should 
be  excluded.  This  rule  is  based  upon  the  most  obvious  prin- 
ciples of  justice.  Is  there  any  good  reason  to  be  suggested  why 
the  rights  of  one  party  should  be  affected  by  the  irresponsible 
admissions  of  another  party,  with  whom  he  chances  to  be  associ- 
ated as  such,  but  upon  whom  he  has  conferred  no  authority  to 
speak  for  him  ? 

Such  a  principle  would  enable  a  party  to  deprive  another  of 
his  legal  rights,  without  that  other  being  able  either  to  disprove 
the  admissions,  or  by  cross-examination  to  test  their  truth.  It  is 
true  that  the  admissions  of  a  party  adverse  to  his  interests  are 
held  admissible  because  of  the  improbability  of  a  person  admit- 
ting a  fact  contrary  to  his  interest  unless  such  admission  be  true, 
and  there  seems  to  be  a  propriety  in  holding  such  a  party  bound 
by  his  own  admissions,  but  when  the  interests  of  another  party 
intervene,  that  other  party  has  the  right  to  insist  that  they  shall 
not  be  divested  except  by  the  ordinary  proof  attested  by  the  sanc- 
tion of  an  oath,  or  by  his  own  voluntary  admissions. 

In  his  capacity  of  executor,  the  residuary  legatee  represents 
with  the  other  executors  all  the  devisees  and  legatees,  and  not 
himself  alone,  and  they  have  the  right  in  that  representative 
capacity  to  object  to  the  admissions  made  by  one  legatee  to  affect 
all  the  others 

If  the  testator,  the  origin  and  source  of  the  testamentary  bounty, 
cannot,  after  the  execution  of  his  will,  admit  away  the  rights  of 
the  beneficiaries  or  impair  the  validity  of  the  testament  by  such 
admissions,  upon  what  principle  can  one  beneficiary  be  permitted 
to  impair  or  destroy  the  rights  of  his  co-beneficiaries,  who  derive 
nothing  of  those  rights  from  or  through  him? 

Suppose  the  legatees  of  the  will  in  question  who  are  neither 
heirs  nor  next-of-kin,  had  declared  that  they  unduly  influenced  the 
deceased  to  make  such  will  in  favor  of  William  II.  Vanderbilt, 
can  it  be  thai  the  other  legatees  are  to  be  deprived  of  their  leg- 
acies upon  such  admissions?  And  yet  they  are  parties  in  in- 
terest, represented  by  the  executors.  If  the  doctrine  obtain  that 
a  party  who  admit-  a  fact  adverse  to  his  interesl  may  affeel  the 
rights  of  all  other  parties,  il  would  extend  the  principle  to  any 
legatees,  however  insignificanl  their  legacies.  A  fact  might  thus 
be  adjudged  which  would  deprive  all  the  other  legatees  of  their 


1(58  INDUE  INFLUENCE. — FRAUD. 

legacies,  upon  the  irresponsible  admission  of  some,  whom  they 
had  clothed  with  no  authority  to  speak  for  them  or  to  intervene 
in  respect  to  their  rights.  I  say  irresponsible,  because  the  leg- 
ators making  the  admissions  could  not  be  held  liable,  although 
their  admissions  were  false.  As  to  the  other  parties  who  had  no 
responsibility  respecting  the  admissions,  such  admissions  would 
obviously  be  hearsay. 

Suppose  a  legatee,  for  some  fraudulent  or  revengeful  purpose, 
or  pursuant  to  some  corrupt  combination  with  the  contestants, 
should  make  admissions  adverse  to  the  probate  of  the  will,  would 
it  be  just  that  the  rights  of  innocent  parties  should  be  thus  im- 
paired or  destroyed,  without  the  power  of  redress  ? 

It  may  be  answered  that  witnesses,  when  examined  under  oath 
upon  the  stand,  may  swear  falsely,  and  may  have  entered  into 
fraudulent  schemes  to  destroy  the  rights  of  other  parties,  under 
the  subornation  of  an  adverse  party ;  but  in  such  a  case  the  wit- 
nesses would  be  deterred  by  the  terrors  and  penalties  of  the  crim- 
inal law  against  perjury,  as  well  as  by  the  admonition  of  their 
consciences,  and  the  principal  of  the  penalties  of  the  law  against 
subornation  of  perjury.  Besides,  such  witnesses  would  be  con- 
fronted by  courts,  parties  and  counsel  and  by  public  observation, 
and  the  aggrieved  parties  would  not  only  be  afforded  the  oppor- 
tunity to  inquire  as  to  all  the  circumstances  on  cross-examination, 
as  a  test  of  the  truth  of  the  testimony,  showing  the  manner  and 
conduct  of  the  witnesses  for  the  scrutiny  of  the  court  (an  almost 
infallible  test  of  truth),  but  to  impeach  the  general  character  of 
such  witnesses  for  truth  and  honesty. 

Upon  well-recognized  and  elementary  principles  and  the  high- 
est considerations  of  justice,  as  well  as  the  weight  of  authority,  I 
am  convinced  that  the  various  admissions  and  declarations  of  the 
executor  and  legatee  offered  by  the  contestant  are  inadmissible 
and  should  be  excluded. 

[Also  Matter  of  Baird,  47  Hun  77 ;  Wins,  on  Exrs.  (Perkins' 
Am.  ed.)  360,  note  (ra),  citing  numerous  cases;  Shailer  v.  Bum- 
stead,  given  ante.  The  admissions  of  a  sole  beneficiary  are  com- 
petent. Wms.  on  Exrs.  (Perkins'  ed.)  360,  note  {m)  and  cases 
cited.] 


INTERNAL   EVIDENCE  — DECLARATIONS.  169 

UNDUE  INFLUENCE.— INTERNAL  EVIDENCE.— DECLARATIONS. 
Harrel,  &c.  vs.  Harrel,  &c. 

Kentucky  Court  of  Appeals,  1864. 
(1  Ky.  203.) 

Judge  Robertson  delivered  the  opinion  of  the  court : 

A  paper  purporting  to  be  the  last  will  of  William  Harrel, 
deceased,  after  probate  in  the  county  court  of  Daviess,  was,  on  an 
appeal  to  the  circuit  court,  set  aside  by  the  verdict  of  a  jury  and 
the  judgment  of  that  court.  From  that  judgment  the  propounders 
of  the  will  appeal  to  this  court. 

When  he  acknowledged  the  testamentary  document,  the 
decedent,  about  seventy  years  old,  was  confined  to  his  bed  by  an 
inflammatory  disease,  which  appeared  very  distressing,  and  made 
him  frequently  both  "drowsy  "  and  "flighty,"  and  of  which  he 
died  about  two  days  after  the  attestation. 

At  his  death  he  owned  the  homestead  tract  of  land,  worth 
$10,000  ;  ten  slaves,  valued  at  $±,000;  stock  worth  $1,125  ;  other 
personalty,  estimated  at  $1,673 ;  and  $682  cash  in  hand  ;  and 
there  is  no  proof  that  he  owed  any  debts.  He  left  four  children 
and  some  grandchildren,  none  of  whom  (children  or  grandchildren) 
had  been  advanced  by  him. 

The  testamentary  provisions  are  simple  and  short;  and  give  to 
hi-  widow,  whom  he  married  not  more  than  eight  years  before} 
and  to  his  son  James,  his  whole  estate  of  every  kind  during  her 
life,  remainder  to  said  James,  excepting  only  the  slaves,  which 
were  to  lie  equally  divided  between  James  and  his  brother  Jona- 
than, sisters  Hannah  Eumphrey  and  Mary  Ann  Patrick,  and  the 
children  of  a  deceased  sister,  Lydia  Beard. 

V<>\-  such  gross  inequality  no  reason  is  suggested  in  thedocument 
itself  or  by  the  proof  on  the  trial.  The  testator  had  an  unques- 
tionable  power  to  make  such  a  will.  Bu1  its  apparenl  unreason- 
ableness requires  satisfactory  evidence  that  it  was  the  tree  ami 
deliberate  offspring  of  a  rational,  .-elf-poised,  and  clearly  disposing 
mind.  And  all  this  has  not,  in  our  opinion,  been  shown  l.\  the 
testimony  with  Bufficienl  assurance. 

No  witness  i  xpressed  the  opinion  that  he  had  nol  a  disposing 
mind,  and  the  mbscribing  witnesses,  and  mosl  others,  testified  to 


170  UNDUE  INFLUENCE. — FRAUD. 

some  facts  conducing  to  the  abstract  conclusion  that  he  had.  But 
all  of  them  prove  other  facts,  conflicting,  in  a  greater  or  less 
degree,  with  that  conclusion  ;  and  these  we  will  summarily  notice 
in  two  classes — 1st.  As  illustrative  of  incapacity ;  and,  2d.  As 
indicative  of  extraneous  influence  controlling  his  enfeebled  and 
disturbed  mind. 

1.  lie  was  often  in  a  state  of  stupor,  and,  when  roused,  was 
generally  flighty ;  but  soon,  while  awake,  became  apparently 
rational.  He  dictated  the  substance  of  the  legatory  provisions  as 
written.  But  he  became  comatose  while  the  draftsman  was  writ- 
ing, and  though  soon  awakened  to  apparent  self-possession  and 
reason,  yet  a  watcher  attended  to  his  pulse  so  as  to  announce 
whether  and  when  the  pulsations  should  indicate  an  incapacitating 
perturbation  of  mind. 

2.  His  second  and  surviving  wife — no  mother  of  any  child  of 
his,  often  teased  him  to  make  a  will.  These  annoying  importuni- 
ties were  repeated  from  a  short  time  after  their  marriage  to  a 
few  weeks  before  he  was  struck  down  by  the  fatal  sickness.  He 
always  resisted  these  overt  and  reiterated  solicitations,  and,  on  one 
occasion,  she  said  that  "  the  old  devil "  would  not  do  as  she 
wished.  From  such  proof  of  open  solicitations,  there  can  be  no 
doubt  that  secret  appeals,  more  frequent  and  urgent,  were  con- 
tinued in  various  ways,  and  it  is  not  improbable  that  her  selfish 
perseverance  succeeded,  at  last,  in  bowing  his  stubborn  neck  to 
her  yoke  when  feeble  and  hopeless  on  his  death-bed.  The  proof 
is  clear  that  he  often,  for  years,  declared  that  the  law  made  the 
best  will,  and  that  he  would  never  make  one.  He  also  said,  not 
long  before  his  death,  that  he  desired  an  equal  distribution  of  his 
estate  among  his  children  ;  and,  not  more  than  three  weeks  before 
his  death,  declared  that  he  would  never  make  a  will.  In  confirma- 
tion of  that  as  his  fixed  sentiment,  he,  by  extraordinary  remon- 
strances, prevailed  on  one  of  his  sons  to  die  intestate. 

Now,  what  changed  that  settled  purpose,  for  the  first  time, 
when  he  was  expecting  to  die  every  hour,  and  was  scarcely  able  to 
think  deliberately  or  exercise  a  prudent  volition  ?  The  record 
affords  no  clue  to  a  consistent  answer,  unless  his  wife's  influence, 
aided,  perhaps,  by  the  co-operation  of  his  son  James,  finally  sub- 
jected his  will  and  changed  his  long-cherished  purpose  of  intestacy 
and  legal  equality.     And,  considering  all  the  facts,  the  presump- 


testator's  relations  with  legatee.  171 

Hon  is  strong  that  this  was  the  controlling  cause.  In  the  disturbed 
and  flitting  condition  of  his  mind,  the  impress  of  that  influence 
and  dictation  might  have  enabled  him  mechanically  to  dictate  the 
devise  to  his  wife  and  son  James,  of  his  whole  estate  without 
classifying  it  or  enumerating  the  articles.  And  this  is  rather 
confirmed  by  the  proof  that  he  did  not  suggest,  but  seemed  to 
pretermit,  the  ulterior  provision  as  to  the  slaves  until  his  attention 
was  called  to  that  subject. 

Whilst,  therefore,  the  testamentary  right  should  be  carefully 
guarded  and  faithfully  vindicated,  this  court  should  be  vigilant  to 
prevent,  as  far  as  it  can,  the  abuse  of  that  right  by  withholding 
its  approving  seal  from  a  document,  so  unnatural  and  so  question- 
able as  to  freedom  and  capacity,  as  that  now  under  its  final  con- 
sideration. To  establish  it  as  a  valid  will  would  encourage  a 
prostitution  of  the  testamentary  power.  To  reject  it  would 
increase  the  value  of  that  power,  and  tend  to  frustrate  improper 
intermeddling,  and  especially  in  extremis,  to  disturb  the  just 
equality  of  the  law. 

In  a  case  of  such  unaccountable  inequality,  justice  and  policy 
require  clear  and  satisfactory  proof  of  a  free,  deliberate,  and  dis- 
posing mind,  before  such  a  paper,  as  that  now  before  us,  shall  be 
established  by  our  judgment  as  a  true  and  valid  will.  We  cannot 
feel  that  we  have  that  proof.  On  the  contrary,  we  are  strongly 
inclined  to  the  deduction  that  the  document  was  not  the  spon- 
taneous and  legitimate  offspring  of  a  self-poised,  settled,  and  dis- 
posing mind.  And  this  conclusion,  were  it  more  doubtful  than 
it  is,  might  bo  made  preponderant  by  the  verdict  of  a  jury  of 
neighbors  confirmed  by  the  judgment  of  the  circuit  court. 

Wherefore,  this  court  adjudges  that  the  document  in  question 
Is  not  the  will  of  William  Harrel,  and  remands  the  case  to  tin' 
circuit  court,  with  instructions  t<>  enter  this  judgment  and  certify 
it  to  the  county  court  of  Daviess,  to  he  recorded  as  the- judgment 
of  thai  court. 

UNDUE  [NFLUENOE.— TESTATOR'S  RELATIONS  WITH  LEGATEE. 
Carpenter  v.  ii;it<-h  el  al. 

Xi;w    BaMPBHTBE   SUPREME   OOUBT,    ls*s. 
(64  \    II   578.) 

Carpenter,  J. — The  testimony  thai  Kendall,  when  he  lived  in 
Tyngsboroughj  attended  the  church  of  which   Mia]   Davis,  the 


172  UNDUE  INFLUENCE. — FRAUD. 

father  of  one  legatee  and  grandfather  of  another,  was  a  deacon, 
and  sat  in  the  pew  with  him  and  his  family,  and  that  he  acted  as 
guardian  for  the  grandson,  was  competent  for  the  purpose  of 
showing  tlu'  testator's  relations  to  the  Davis  legatees,  and  afford- 
tne  a  reason  for  his  manifestation  of  interest  in  them.  It  was 
open  to  the  defendants  to  argue  to  the  jury  that  legacies  to 
strangers  indicated  an  unbalanced  mind,  and  it  was  proper  for 
the  plaiutifi  to  show  that  the  legatees  were  not  strangers.  There 
is  no  foundation  for  the  objection  that  the  evidence  touching 
Kendall's  acting  as  guardian  was  secondary.  No  attempt  was 
made  to  show  that  he  was  a  legal  guardian.  The  plaintiff  was 
nqt  precluded  by  the  fact  that  he  was  not  in  law  a  guardian  from 
showing  that  in  fact  he  took  charge  of  and  cared  for  the  boy  and 
his  property  as  a  guardian  would.  The  declarations  of  Diantha 
and  Charles  W.  Carpenter  against  tneir  interest  as  legatees  under 
the  will  were  incompetent  ;  they  were  not  parties  to  the  suit. 
Atkins  v.  Sanger,  1  Pick.  192 ;  Shailer  v.  Bumstead,  99  Mass.  112, 
12S,  129  [given  ante].  The  question  put  to  Ednah  Hatch,  asking 
what  her  deceased  husband  said  was  the  amount  of  the  testator's 
securities,  was  properly  excluded  as  calling  for  mere  hearsay.  His 
decease  did  not  make  his  declarations  competent.  The  act  of  exam- 
ining the  securities  and  computing  their  amount  was  immaterial, 
and  his  statement  was  not  admissible  as  a  part  of  the  res  gestae. 
Morrill  v.  Foster,  32  N.  H.  358,  360 ;  Ordway  v.  Sanders,  58  N.  H. 
132.  The  opinion  of  Emma  L.  Carpenter  that  the  testator  was 
of  sound  mind  was  admissible.  Hardy  v.  Merrill,  56  N.  H.  227. 
Whether  she  was  qualified  to  give  an  opinion  was  a  question  of 
fact  for  the  trial  court.  Jones  v.  Tucker,  41  N.  H.  546  ;  Bundy 
v.  Hyde,  50  N.  H.  116.  The  will  itself  was  evidence  tending  to 
show  that  the  testator,  when  he  executed  it,  was  informed  of  the 
amount  and  character  of  his  property.  The  evidence  that  in 
November,  1885,  he  was  fully  cognizant  of  the  amount  and  char- 
acter of  his  property,  had  some  ter.lency,  and,  if  he  remained  in 
possession  of  his  faculties,  a  strong  tendency,  to  show  that  he  had 
the  same  knowledge  a  few  months  later,  when  he  executed  the 
will  and  codicil.  There  was  no  presumption  of  law  or  fact  that 
Mason  A.  Carpenter  controlled  the  testator's  mind,  and  that  the 
codicil  was  invalid  for  that  reason.  State  v.  Hodge,  50  N.  H. 
510  ;  Bank  v.  Getchell,  59  N.  II.  281.     Whether  he  did  or  did 


EVIDENCE.  173 

not  control  or  improperly  influence  the  testator  was  a  question  of 
fact  for  the  determination  of  the  jury  upon  all  the  evidence,  in- 
cluding his  relations  to  the  testator,  his  acts  and  conduct  in  re- 
spect to  the  making  of  the  will  and  codicil,  and  the  benefit  he 
derives  from  them.  It  was  submitted  to  the  jury  with  proper 
instructions.  Lord  v.  Lord,  58  N.  H.  7,  11.  The  instructions 
asked  by  the  defendants  in  their  third  request  were  given.  It 
Mas  not  necessary  that  the  court  should  adopt  the  defendant's 
precise  language.  Other  exceptions  not  urged  in  the  argument 
have  not  been  overlooked.  Judgment  on  the  verdict. 
Smith,  J.,  did  not  sit.     The  others  concurred. 


UNDUE   INFLUENCE.— EVIDENCE. 
Tyler  v.  Gardiner. 

New  York  Court  op  Appeals,  1866. 

(35  N.   Y.  559.) 

Porter,  J. — There  is  an  almost  wearisome  monotony  in  the 
conformity  of  the  facts  developed  on  the  hearing,  with  the  fami- 
lial- and  recognized  indicia  of  contrivance  and  undue  influence. 
There  are  few  of  the  reported  cases,  in  which  wills  have  been 
condemned,  presenting  such  a  concurrence  of  circumstances  un- 
favorable to  the  establishment  of  the  instrument.  If  they  were 
susceptible  of  contradiction  or  explanation,  the  sources  of  proof 
were  abundant.  The  respondent  was  a  competent  witness.  Most 
of  the  material  facts  were  within  her  personal  knowledge.  She 
was  a  prominent  actor  in  all  that  related  to  the  will,  and  in  the 
Beriea  of  transactions  which  led  to  so  complete  a  revolution  of  in- 
tention on  the  part  of  the  testatrix.  She  was  surrounded  by  a 
numerous  household  :  the  important  events  were  of  recent  occur- 
rence, and  they  transpired  at  her  own  residence.  When  we  find 
the  party,  whose  righl  and  inteiv-t  it  was  to  countervail  the  force 
of  the  tacts  by  evidence,  content  to  leave  them  unrebutted  and 
unexplained,  and  to  abide  by  the  conclusions  to  which  they  so 
clearly  tend,  we  have  nothing  to  do  bul  to  draw  the  inevitable 
inference,  and,  applying  the  settled  rules  of  law,  to  sustain  the 
rejection  of  the  will.  It  may  be  thai  the  whole  truth  of  the  case 
is  not  before  as ;  that  fact-  exist,  which,  if  proved,  would  relieve 


174  UNDUE  INFLUENCE.— FRAUD. 

it  from  some  of  its  unfavorable  aspects ;  but  we  are  bound  to  take 
the  evidence  as  we  find  it,  and  to  give  it  effect  in  accordance  with 
our  clear  convictions. 

It  will  facilitate  a  consideration  of  the  legal  questions  involved, 
to  precede  it  with  a  condensed  analysis  of  the  more  material  facts, 
grouped  with  reference,  not  merely  to  the  order  of  time,  but  also 
to  their  mutual  dependence  and  relation. 

The  property  of  the  testatrix  was  mainly  derived  from  her 
children,  by  voluntary  and  equal  gift  of  their  shares  in  their 
paternal  inheritance.  That  her  ultimate  estate  came  to  be  so 
considerable,  was  mainly  due  to  the  fidelity  and  care  of  her  son. 
David,  who  relinquished  a  profitable  business,  at  the  age  of  thirty- 
three,  to  assume  the  management  of  her  property  ;  who  devoted 
himself  faithfully  to  the  object,  without  recompense,  until  he 
was  forty-six  years  old  ;  and  who  was  then  ignominiously  dis- 
missed by  his  mother,  without  cause,  through  the  active  and  con- 
trolling influence  of  a  younger  sister,  who  had  recently  become  a 
member  of  the  household.  He  had  been  educated  to  a  profes- 
sion which  he  had  never  practiced  ;  had  married,  when  he  had 
just  expectations  of  a  liberal  provision  from  his  mother's  estate ; 
and,  so  far  as  the  evidence  discloses,  he  had,  at  no  time,  been 
wanting  in  filial  duty  or  affection,  or  received  from  her  a  mark 
of  displeasure  or  unkindness  down  to  the  hour  when,  by  a  letter 
written  by  her,  corrected  by  his  sister,  and  delivered  by  a  messen- 
ger, all  being  under  the  same  roof,  he  was  suddenly  ordered  to 
leave  her  house. 

Harry  Beeckman  was  an  orphan  boy  of  thirteen ;  an  inmate 
of  the  family,  and  dependent  upon  the  bounty  of  his  grand- 
mother, only  because  she  had  been  the  donee  of  his  mother's  in- 
heritance. 

Mrs.  Tyler  was  the  only  member  of  the  family,  who,  independ- 
ent of  the  testatrix,  had  a  large  property  in  her  own  right.  She 
left  her  father's  house  the  year  he  died,  and  returned  home  at  a 
time  when  her  mother  bore  the  fatal  marks  of  organic  diseases, 
which,  within  a  twelvemonth,  resulted  in  death.  The  daughter  had 
been  favored  by  circumstances  gratifying  to  a  mother's  pride  and 
giving  prestige  to  her  name.  She  was  a  lady  of  intelligence  and 
culture;  her  manners  were  engaging  and  attractive;  she  wrote 
with  facility  and  grace  ;  she  was  assiduous  in  her  attentions  to  her 


EVIDENCE.  175 

mother,  and  soon  brought  her  to  feel,  as  she  declared  in  one  of 
her  letters,  a  copy  of  which  was  preserved  and  produced  by  Mrs. 
Tvler  on  the  hearing,  not  only  that  the  society  of  her  daughter  was 
agreeable  to  her,  but  that  she  needed  her  "sympathy  and  assist- 
ance." This  needful  sympathy  and  assistance  do  not  seem  to 
have  been  withheld;  and  from  the  time  of  the  daughter's  arrival, 
their  views  became  more  and  more  concurrent,  until  they  entirely 
harmonized.  The  influence  of  Mrs.  Tyler  soon  became  apparent 
in  the  family,  and  in  all  matters  of  importance  it  seems  to  have 
been  uniformly  effective  and  controlling.  She  had  seasonably 
notified  her  brother  in  advance  that  she  intended  to  return,  and 
that  he  must  seek  other  quarters  for  himself,  his  wife,  and  his 
children.  To  the  latter  proposition  he  did  not  accede,  and  his 
answer,  referring  that  question  to  his  mother,  in  co-operation 
with  other  causes,  seems  to  have  produced  toward  him  a  feeling  of 
unkindness  on  her  part,  in  which,  soon  after  she  became  an  in- 
mate of  the  house,  her  mother  was  brought  to  sympathize.  It  is 
true  that,  when  the  request  to  the  latter  to  send  David  away  was 
preferred,  in  the  firs*-  instance  by  one  of  Mrs.  Tyler's  children, 
she  promptly  refused  to  comply,  on  the  ground  that  he  was  her 
child  ;  but  this  objection  was  readily  overcome,  and  she  was  soon 
afterward  induced  to  yield  to  the  request,  and  to  dispatch  a  letter 
to  the  son,  in  which  this  parental  relation  seems  to  have  been  en- 
tirely overlooked.  Indeed,  in  the  subsequent  letters,  the  exist- 
ence of  this  involuntary  family  tie  is  alluded  to  in  terms  which 
indicate  an  impression  on  her  part  that  it  was  a  matter  of  conde- 
scension to  acknowledge  it,  even  for  the  purpose  of  invidious 
comparison  between  him  and  her  daughter. 

In  the  brief  period  which  intervened  between  the  return  of  the 
lister  and  the  expulsion  of  the  brother,  the  mother  was  brought 
into  a  state  of  singular  and  causeless  alarm  as  to  the  condition  and 
safety  of  her  property,  and  she  was  led,  in  the  subsequent  letters, 
of  which  Mrs.  Tyler's  memoranda  were  produced  on  the  hearing, 
to  overwhelm  him  with  groundless  imputations  of  malfeasance, 
deception,  and  fraud,  iii  the  performance  <>l  his  duties  as  her 
gratuitous  agent,  and  in  the  management  of  her  perplexing  and 
diversified  business  affairs.     She  was  also,  in  some  way,  made  to 

believe  that  lie  had  been  guilty  of  u  some  fearful  proceedings"  to 

his  sister,  <>f  which  the  servants  in  the  family  had  been  eye-wit- 


176  UNDUE  INFLUENCE. — FRAUD. 

nessci.  Her  letter  shows  that  the  servants  were  not  her  inform- 
ants, find  it  is  obvious  that  the  reproach  was  wholly  unmerited,  as 
there  is  not  a  shadow  of  foundation  for  it  in  the  evidence. 

The  proof  leaves  no  room  for  doubt  that  these  later  letters 
were  written  with  the  privity  of  the  sister,  if  not  transcribed  from 
her  so-called  memoranda.  The  fact  is  undisputed  that,  during 
most  of  the  brief  period  in  which  these  false  impressions  were 
imbibed,  the  mother  was  a  confined  and  suffering  invalid  ;  that  the 
son  was  engaged,  as  usual,  in  the  management  of  her  general  busi- 
ness; that  she  was  in  the  closest  intercourse,  if  not  under  the  im- 
mediate influence,  of  Mrs.  Tyler,  who  was  most  of  the  time  in  her 
room ;  and  that  the  latter  was  the  only  party  interested  in  alien- 
ating the  mother  from  the  son,  and  the  only  party  benefited  by 
the  testamentary  changes,  which  she  introduced  these  letters  to 
explain.  That  her  influence  over  her  mother  was  active  and  con- 
trolling is  apparent,  not  only  from  the  ultimate  acquiescence  of 
the  latter  in  her  views,  which  were  contrary  to  those  she  had  pre- 
viously entertained,  but,  also,  from  the  significant  circumstance 
that,  though  the  son  repeatedly  called  at  the  house  of  his  mother, 
and  continued  to  do  so  down  to  the  month  of  Mav,  he  never 
found  his  way  to  her  presence ;  that  she  then  left  home,  and  re- 
mained through  the  summer  at  a  private  boarding-house  in  New 
York,  Mrs.  Tyler  visiting  her  there  almost  daily ;  and  that,  on  her 
return  to  Castleton,  and  the  near  approach  of  death,  though  the 
lawyer  and  doctor  were  promptly  summoned,  no  message  was 
sent  to  her  only  son.  So  far  as  we  have  the  means  of  judging 
from  these  facts,  from  the  memoranda  produced  by  Mrs.  Tyler, 
and  from  the  singular  provisions  of  the  will,  Mrs.  Gardiner  re- 
tained, to  the  hour  of  death,  the  false  impression  that  David  had 
deceived  and  defrauded  her,  and  that  he  had  been  guilty  of  wrongs 
to  his  sister,  too  fearful  to  be  spoken  of  either  by  him  or  the  tes- 
tatrix. 

That  will  was  made  on  her  death-bed,  in  the  presence  and  by 
the  procurement  of  her  daughter,  and  in  the  absence  of  her  son 
and  grandson.  Her  clergyman  opportunely  called  on  his  dying 
parishioner.  He  was  excluded  by  the  testatrix,  but  the  execution 
of  the  will  was  not  suspended.  She  had  never  exchanged  a  word 
on  the  subject  with  the  draughtsman  of  the  instrument  until  the 
day  of  her  death.     She  referred  him  to  Mrs.  Tyler,  as  the  party 


EVIDENCE.  177 

from  whom  be  was  to  take  bis  instructions ;  and  her  inquiry  on 
that  subject  shows  that  she  did  not  know  whether  they  were  writ- 
ten or  oral.  She  complied,  however,  as  well  as  she  could,  with 
his  request  for  personal  instructions,  and  answered  such  inquiries 
as  he  felt  it  his  duty  to  make.  Mr.  Clark  had,  in  fact,  been  pre- 
viously furnished  with  full  written  instructions,  sent  to  him  the 
day  before  by  Mrs.  Tyler,  with  a  note  bearing  date  three  days 
prior  to  the  execution  of  the  will.  They  were  in  the  handwrit- 
ing of  the  daughter,  and  were  of  a  nature  which  could  scarcely 
fail  to  excite  the  surprise  of  one  who  knew  the  testatrix,  and  the 
situation  and  relations  of  the  family.  He  declined  to  comply  with 
Mrs.  Tyler's  request  that  he  should  reduce  them  to  form,  without 
confirmation  by  personal  instructions  from  the  testatrix.  Though 
his  call  was  on  the  evening  first  named  in  Mrs.  Tyler's  note,  as 
that  on  which  she  wished  him  to  bring  the  will  for  execution,  she 
intimated  that  the  interview  he  proposed  with  her  mother  would 
be  inconvenient  at  that  time,  and  deferred  it  until  the  following 
morning.  She  alone  was  present  when  that  interview  occurred. 
The  inquiries  made  bv  Mr.  Clark  were  those  suggested  to  his 
mind  by  her  written  instructions.  He  made  an  appointment  for 
the  execution  of  the  will  at  five  o'clock  in  the  afternoon.  Before 
noon  Mrs.  Tyler  sent  a  messenger  to  his  office  to  expedite  the 
preparation  of  the  instrument,  and  to  have  it  brought  in  haste  for 
execution.  She  provided  the  attesting  witnesses;  was  present  at 
the  reading  and  signing;  and  rendered  such  assistance  as  the  pros- 
trate condition  of  her  mother  required. 

On  the  day  wheu  these  occurrences  transpired,  Mrs.  Gardiner 
was  exhausted,  vomiting,  weak,  signifying  her  wishes  and  assent, 
sometimes  by  words  and  sometimes  by  noils.  The  gentleman 
who  drew  the  will  conducted  the  matter  with  great  propriety, 
ami,  perhaps,  with  more  scrupulous  caution  than  was  entirely 
agreeable,  either  to  the  mother  or  to  the  daughter.  He  seemed 
impressed  with  the  idea  that  the  provisions  he  was  directed  to 
insert  called  for  some  explanation.  He  pushed  his  inquiries  as 
fir  .1-  Ik;  could,  without  :!|>|>;ireni  incivility.  In  relation  to  the 
gift  by  the  testatrix  to  her  son,  of  certain  claims  and  advances,  lie 
ascertained  thai  they  rested  on  no  written  evidence,  and  that  .-he 
could  give  him  no  specific  information  :  but  the  general  result  of 
hi.-  interview-  with  the  mother  and  daughter  was  to  leave  him 
12 


178  UNDUE  INFLUENCE.— FRAUD. 

under  the  mistaken  impression  that  such  claims  really  existed. 
The  idea  that  Mis.  Gardiner  had  made  advances  toward  the  pur- 
chase of  David's  farm,  seems  never  to  have  been  suggested  in 
any  quarter,  until  it  appeared  in  Mrs.  Tyler's  instructions.  The 
mother,  of  course,  knew  that  she  had  never  made  any  such  ad- 
vances; and  it  is  difficult  to  resist  the  conclusion  that  she  was 
made  to  believe  that  her  son  had  bought  the  farm  with  money 
embezzled  from  her.  The  insertion  of  the  provision,  utterly 
groundless  as  it  was,  could  serve  no  practical  purpose,  except  to 
give  to  the  will  a  seeming  color  of  equality.  Mr.  Clark,  also, 
very  properly,  deemed  it  his  duty  to  inquire  as  to  the  prospect  of 
the  restitution  by  the  government  to  Mrs.  Tyler,  which  was  to  be 
the  condition  of  the  enjoyment  by  David  Gardiner  of  his  inher- 
itance. Neither  of  the  ladies  seemed  able  to  furnish  any  infor- 
mation on  this  point.  That  the  idea  originated  with  Mrs.  Tyler 
is  shown,  not  only  by  the  written  instructions,  but  also  by  the 
direct  and  affirmative  evidence  of  one  of  the  subscribing  wit- 
nesses. Mr.  Clark  felt  bound  also  to  inquire  as  to  the  grounds 
on  which  she  expected  to  obtain  further  damages  against  the  city 
of  New  York,  in  addition  to  those  already  awarded  her,  for  open- 
ing  certain  streets.  Having  been  her  attorney  and  counsel  in 
that  matter,  he,  of  course,  recognized  the  absurdity  of  such  a 
claim.  She  replied  with  a  vague  intimation  that  she  had  been 
assured  by  her  friends  that  she  could  obtain  such  additional  dam- 
ages. Who  these  friends  were,  does  not  appear,  otherwise  than 
bv  inference.  Her  son  had  advised  her  that  such  a  suit  would 
be  hopeless ;  and  the  only  person  by  whom  it  seems  to  have  been 
regarded  with  favor  was  Mrs.  Tyler,  who  made  it  the  staple  of  one 
of  her  instructions,  and  certified  the  claim  to  be  just.  She  prob- 
ably so  supposed,  as  she  directed  the  insertion  of  the  bequest  in 
the  will ;  but,  in  the  light  of  the  evidence,  it  was  valueless,  ex- 
cept as  evincing  a  recognition  of  the  propriety  of  introducing 
one  provision  into  the  instrument,  in  which  there  should  be  some 
regard  to  apparent  equality  in  distribution. 

The  testatrix  made  the  will  under  false  impressions,  as  to  the 
relative  circumstances  of  her  son  and  daughter.  She  had  enlarged 
on  the  poverty  of  the  latter,  in  conversation  during  the  summer, 
with  the  two  ladies  who  were  called  by  the  respondent  in  support 
of  the  will.     She  talked  to  Mrs.  Stryker  in  relation  to  Mrs.  Tyler 


EVIDENCE.  179 

and  "  the  destruction  of  her  property."  She  told  Miss  Cooper 
that  '''Julia  was  poor";  and  added:  "Don't  think  that  I  don't 
care  fur  David,  but  I  must  take  care  of  Julia."  Mrs.  Tyler,  in 
her  instructions,  speaks  of  "  the  losses  of  property  she  has  sus- 
tained,"  omitting,  of  course,  any  reference  to  the  property  she 
had  nut  lust,  which  she,  perhaps,  thuught  inappropriate  in  that 
connection,  though  it  is  alluded  to  in  general  terms  in  the  will 
afterward  prepared  by  Mr.  Clark;  and  Mr.  Dayton,  the  tutor  uf 
her  children,  had  previuusly  heard  her  talking  to  her  muther 
about  her  losses.  Mrs.  Gardiner,  herself,  seemed  to  feel  the 
necessity  uf  some  apology  to  Mr.  Clark  fur  the  singular  previsions 
of  the  instrument;  and  his  attention  was  arrested  by  the  circum- 
stance, that,  at  the  first  of  the  two  death-bed  interviews,  notwith- 
standing her  distress  and  difficulty  of  articulation,  "she  talked  for 
.-Mine  moments  about  her  daughter  having  lost  her  property,  and 
her  desire  to  provide  for  Her,  and  that  she  trusted  the  others 
would  acquiesce  in  it  cheerfully."  The  apology  was  inserted  in 
tin-  will,  and  is  the  only  material  provision  in  the  instrument  not 
traceable  to  Mrs.  Tyler's  written  instructions.  It  is  difficult  to 
attribute  to  any  other  rational  cause,  than  Mrs.  Card  bier's  sense 
of  the  injustice  of  the  will,  her  objection  to  its  being  read  in  the 
presence  of  her  physician,  who  was  to  attest  it;  her  injunction 
of  secrecy  when  Mr.  Clark  told  her  that,  though  the  precaution 
was  not  usual,  he  preferred  that  the  doctor  should  be  pre'sent 
when  he  read  it;  and  her  refusal  to  admit  her  clergyman,  who 
happened  to  call  as  she  was  about  to  affix  her  signature. 

Mrs.  Gardiner  had,  undoubtedly,  testable  capacity  at  the  time 
the  instrument  was  executed,  but  she  was  in  a  condition  to  be 
peculiarly  exposed  to  the  exercise  of  undue  influence.  Until  she 
became  an  invalid,  she  was  a  lady  of  fair  intelligence,  unfamiliar 
with  business,  of  an  affectionate  and  yielding  disposition,  fond  of 

attention  and  deference,  and  not  unconscious  of  the  consideration 
to  which  she  was  entitled,  in  virtue  of  her  property  and  position. 
She  was  more  credulous  than  most  of  her  sex.  and  repeated,  from 
time  to  time,  to  her  female  friends,  spiritual  communications, 
which  -lie  supposed  she  had  received  at  successive  intervals  from 
her  deceased  husband,  son,  and  daughter.  In  the  later  yearsof  her 
life  she  was  a  severe  Bufferer  f rom  disease.  When  her  daughter 
came  home,  in  November,  Hi;:;,  8he  was  feeble  and  emaciated, and 


180  UNDUE  INFLUENCE. — FRAUD. 

during  the  winter  she  was  mostly  confined,  not  only,  to  her  house, 
tmt  to  her  room. 

The  daughter  was  in  the  prime  of  life.  The  mother  was  infirm 
of  purpose,  sick  and  old.  She  was  soon  imbued  with  false  impres- 
sions,, and  brought  to  a  condition  of  nervous  and  causeless  suspicion 
and  alarm.  She  expelled  her  son  from  her  house,  and  never  saw 
him  afterward.  Her  subsequent  communications  with  him  were 
very  few,  very  bitter,  and  all  in  writing.  The  letter  of  the  10th 
of  February,  directing  him  to  leave,  was,  undoubtedly,  composed 
by  her,  though  corrected,  if  not  prompted,  by  her  daughter.  It 
bears  upon  ks  face  the  evidence  that  she  was  not  an  easy  and 
practical  writer.  The  letter  of  the  9th  of  March,  and  those  which 
followed  it,  are  in  a  very  different  style.  If  they  were  designed 
for  future  use,  as  evidence  furnished  by  her,  of  the  truth  of  the 
groundless  accusations  with  which  they  abound,  they  were  well 
framed  for  such  a  purpose.  If  they  were  intended  to  repel  all 
possible  explanation,  and  to  cut  off  even  the  hope  of  any  future 
reconciliation,  they  were  couched  in  terms  appropriate  to  that  end. 
If  they  were  really  composed  by  her,  it  is  quite  apparent  that,  in 
the  month  which  intervened  between  her  first  and  second  letter, 
she  had  made  unexampled  progress  in  her  literary  acquirements, 
observable  alike  in  her  style,  her  punctuation,  and  her  accuracy  in 
the  use  of  language.  They  are  marked,  however,  by  no  diminu- 
tion of  bitterness,  and  no  observance  of  the  usual  forms  of  courtesy, 
except  that  when  the  daughter  is  referred  to,  she  is  spoken  of  in 
terms  of  almost  extravagant  encomium  and  deference.  Whether 
the  son  was  right  in  his  conviction  as  to  their  authorship,  to  which 
he  testified  on  the  hearing,  is  only  matter  of  inference  from  the 
production  of  the  so-called  memoranda,  not  shown  to  be  in  the 
handwriting  of  the  mother,  and  from  the  omission  of  any  denial 
by  his  sister,  to  whom  he  imputed  the  dictation  of  the  letters. 

That  the  death-bed  disposition,  by  Mrs.  Gardiner,  of  her  prop- 
erty, was  entirely  opposed  to  her  former  deliberate  purposes,  and 
her  convictions  of  equity  and  justice,  before  her  faculties  were 
impaired  by  disease  and  infirmity,  is  indisputably  established  by 
the  will  of  1S58. 

She  was  then  fifty-nine  years  of  age,  and  in  perfect  health.  Her 
son  had  the  same  property  at  that  time  which  he  had  at  the  date 
of  the  will  of  1864,  consisting  of  a  farm,  mortgaged  for  the  entire 


EVIDENCE.  181 

purchase-money,  except  the  $5,000  paid  from  his  earnings  in 
California.  Her  property  was  the  same  in  185S  as  in  1864,  except 
so  far  as  its  value  had  been  augmented  in  the  interval  under  his 
charge,  and  through  his  continued  services  and  supervision.  Her 
grandson,  Harry  Beecktnan,  was,  at  both  dates,  an  inmate  of  her 
family,  and  nothing  had  occurred  in  the  six  years  intervening  to 
alienate  the  affections  of  the  testatrix,  or  to  add  to  his  means  or 
expectations. 

Mrs.  Tyler,  at  the  date  of  the  first  will,  was  dependent  on  such 
provision  as  her  husband  might  make  for  her,  in  case  she  survived 
him.  When  the  last  was  made,  she  had  a  considerable  estate  in 
her  own  right. 

By  the  original  will,  the  testatrix  gave  the  twelve  acres  on 
which  she  lived,  and  the  movables  thereon,  to  her  son.  The 
place  was  subject  to  the  Roosevelt  mortgage,  the  payment  of 
which  was  not  charged  on  the  residuary  devisees,  as  it  wras  in  the 
subsequent  will,  when  it  was  given  to  Mrs.  Tyler.  All  the  residue 
of  her  property,  she  gave,  in  equal  shares,  to  her  son,  her  daughter, 
and  her  grandson. 

The  contrast  between  the  two  instruments  is  striking.  The  first 
makes  precisely  such  a  disposition  of  her  property  as  her  children 
would  naturally  expect,  in  view  of  the  sources  from  which  it  was 
derived,  the  services  of  the  son  by  whose  care  it  had  been  pre- 
served and  augmented,  and  the  common  claims  of  affection  and  of 
blood.  If  she  ever  had  made  any  advances  toward  the  purchase 
of  David's  farm,  she  knew  it  then  ;  for  he  had  bought  it  five  years 
before,  and  all  that  he  paid  toward  the  price  was  paid  at  that  time 
If  she  disapproved  the  mode  in  which  he  transacted  her  business, 
she  knew  it  then;  fur  ho  had  transacted  it  through  the  preceding 
seven  years,  in  tin-  same  mode,  which  was  continued  to  the  year  of 
her  death.  If  ho  had  then  rendered  services  worthy  of  special 
recognition  in  her  will,  the  force  of  the  claim  was  not  diminished 
by  ~i.\  more  years  of  Bimilar  service  without  recompense. 

Iii  new  of  all  these  circumstances,  it  is  difficult  to  resist  the 
conclusion  that  the  death-bed  will  of  L864  was  the  result  of  the 
same  controlling  influence  which  led,  a  few  months  before,  to  the 

expulsion  of  the  BOD  from  his  mother's  house.  In  the  light  of  the 
surrounding  and  antecedent  facts,  the  testamentary  instrument 
carrie-  with  it  its  own  condemnation. 


182  UNDUE  INFLUENCE. — FRAUD. 

The  precise  case  is  presented,  in  which  we  are  legally  bound  to 
compare  the  provisions  of  the  two  wills.  (Delafield  v.  Parish,  25 
N.  Y.  35 ;  Marsh  v.  Tyrrell,  2  Haggard  87,  110.)  In  the  first  of 
these  cases,  a  leading  and  controlling  ground  of  the  decision  was, 
the  hostility  of  the  provisions  of  a  codicil,  executed  by  a  testator 
in  a  condition  of  helplessness  which  exposed  him  to  undue  influ- 
ence, to  those  of  an  antecedent  will,  made  when  he  was  in  health, 
evincing  deliberation  and  care,  and  free  from  all  suspicion.  The 
case  of  Marsh  v.  Tyrrell,  which  this  court  has  repeatedly  had  occa- 
sion to  approve,  was  one  where  the  husband  was  the  principal 
beneficiary  under  a  will  made  by  his  wife,  under  circumstances,  in 
many  respects,  similar  to  those  which  concur  in  the  case  at  bar. 
In  pronouncing  the  judgment  of  the  court,  Sir  John  Nicholl 
said  :  "  In  inquiring,  then,  into  the  factum  of  the  latter  will,  it 
becomes  material  to  examine  the  probability  of  this  great  change 
of  intention,  and  it  becomes  the  more  necessary,  if,  at  the  time  of 
making  the  disposition,  the  capacity  was,  in  any  degree,  weakened 
or  doubtful ;  still  more,  if  the  husband,  in  whose  favor  this  great 
change  is  made,  and  who,  from  the  relation  in  which  he  stands  to 
the  deceased,  must  almost  necessarily  have  great  influence  and 
authority,  should  be  the  person  originating  and  conducting  the 
whole  business  of  the  new  will.  To  examine,  then,  the  probability 
of  this  change,  it  may  be  proper  to  consider  the  grounds  and 
circumstances  of  making  the  first  will.  If  they  were  made  upon 
hasty,  capricious,  temporary  considerations,  the  departure  from  it 
becomes  less  improbable  ;  but,  if  made  under  motives  long  exist- 
ing, and  quite  naturally  inducing  it,  the  adherence  to  it  will  be  the 
more  strongly  presumed,  and  the  circumstances  to  account  for  the 
complete  revolution  in  her  intentions  will  be  required  to  be  more 
forcible."  After  reviewing  the  particular  facts,  he  adds :  "  If, 
then,  in  addition  to  these  circumstances,  first,  that  the  disposition 
in  the  new  will  is  highly  improbable ;  next,  that  the  husband  had 
been  endeavoring  to  get  at  her  deeds  and  testamentary  instruments ; 
and  further,  that  she  was  in  this  state  of  doubtful  capacity  ;  if,  in 
addition  to  all  this,  we  find  that  the  husband,  as  far  as  the  evidence 
goes,  originates  and  conducts  the  whole  business,  representing,  or 
rather  misrepresenting,  the  previous  facts,  and  being  present  at 
all  the  material  parts  of  the  transaction,  the  case  proceeds  to  the 
evidence  of  the  factum  under  presumptions  of  fraud  and  imposition, 


EVIDENCE.  183 

which  hardly  any  evidence  would  be  sufficient  to  repel.  It  would, 
at  least,  be  extremely  difficult  to  show  that  she  was  a  free,  as  well 
as  a  capable,  testatrix;  to  show  that  she  had  a  real,  disposing,  testa- 
mentary mind,  and  an  intention  to  abandon  all  the  dispositions  of 
her  former  will,  made  so  carefully  and  adhered  to  so  firmly.  The 
strong  presumption  would  be,  that,  in  whatever  she  said  and  did, 
however  it  might  impose  upon  the  witnesses,  she  was  a  mere 
instrument  in  the  hands  of  her  husband." 

In  the  leading  case  of  Blewitt  v.  Blewitt,  the  issue  was  as  to  the 
execution  of  a  will,  made  in  feeble  health,  by  a  testator  sixty-nine 
years  of  age,  and  under  circumstances  which  exposed  him  to  undue 
influence,  by  a  lady,  who  had  strong  claims  upon  his  justice  as 
well  as  his  bounty.  That  case,  like  this,  presented  unfavorable 
features  peculiar  to  itself;  but.  among  those  common  to  both, 
were  the  weakness  and  exhaustion  of  the  party  ;  the  entire  de- 
parture from  previous  testamentary  dispositions  ;  the  false  impres- 
sions under  which  the  will  was  made ;  the  active  agency  of  the 
beneficiary  in  procuring  it  to  be  drawn ;  her  presence  at  the  testa- 
mentary act,  and  the  absence  of  those  who  had,  at  least,  equal 
claims  upon  the  justice  of  the  testator.  The  eminent  jurist,  by 
whom  the  opinion  was  delivered,  after  alluding  to  the  force  of  the 
presumptions  against  the  instrument  from  its  hostility  to  previous 
testamentary  provisions,  proceeds  to  say:  "It  is  difficult  to  con- 
ceive a  case  in  which  that  presumption  would  exist  with  more 
force  than  in  the  present,  looking  to  the  former  wills,. to  the  con- 
dition of  the  deceased,  to  the  parties  in  whose  favor  the  codicil 
was  to  be  made  being  at  the  time  about  the  deceased,  and  to  the 
absence  of  Other  parties,  to  whose  prejudice  these  alterations  were 
to  operate.  In  such  a  case,  the  fullest  proof  of  capacity,  equal, 
not  merely  to  some  testamentary  act,  but  to  this  important  revoca 
ti'.n  of  former  dispositions,  and  to  a  new  direction,  given  to  a  large 
portion  of  his  property,  should  be  dearly  established  ;  and,  in  this 
instance,  the  condition  of  the  deceased,  the  possession  of  him  by 
the  parties  to  be  benefited,  and  the  false  impressions  made  upon 

hie  mind,  have,  also,  a  strong  appearance  of  fraudulent  circumveu 

fcion,  requiring  the  case  to  be  proved  by   the  most   satisfactory 
evidence."    (4  Haggard,  463.) 

The  application  of  this  recognized  legal  test  to  the  present  will, 
upon  the  state  of  facts  disclosed  by  the  evidence,  raises  a  strong 


184  UNDUE  INFLUENCE. — FRAUD. 

presumption  of  undue  influence,  which  the  proponent's  proof 
wholly  fails  to  repel.  The  original  will,  undoubtedly,  expressed 
the  intelligent  and  deliberate  purposes  of  the  testatrix.  The  dis- 
position which  it  made  of  her  property  was,  obviously,  equitable, 
rational,  and  just.  Its  language  is  simple  and  direct.  The  reader 
is  not  left  in  doubt  as  to  the  purpose  or  the  motives  of  the  testa- 
trix. It  contains  no  false  suggestions,  no  substantial  gifts  to  one, 
in  the  form  of  seeming  gifts  to  another,  no  apology  for  its  own 
provisions,  and  no  admonition  to  filial  acquiescence  in  parental 
injustice.  It  commits  the  charge  of  the  grandson's  estate,  during 
the  period  of  nonage,  to  the  son,  who  had  so  faithfully  and  suc- 
cessfully managed  her  own,  and  it  does  not  name  a  stranger  as 
executor,  to  the  exclusion  of  her  own  family.  So  far  as  the 
evidence  shows,  this  instrument,  executed  in  July,  1858,  was  in 
existence  in  May,  1864,  and  remained,  as  an  authentic  and  un- 
revoked expression  of  her  deliberate  will,  until  the  very  day  of 
her  death. 

The  subsequent  will  bears  upon  its  face  the  marks  of  indirec- 
tion, as  well  as  of  singular  contrivance  and  forethought.  It  con- 
tains peculiar  and  unusual  provisions.  It  locks  up  the  property 
devised  to  the  son,  and  commits  the  key  to  the  custody  of  his 
younger  sister,  whose  hostility  was  well  known  to  the  testatrix. 
It  anticipates  and  provides  for  the  unusual  contingency  of  a  pos- 
sible removal  of  either  the  son  or  the  daughter  out  of  the  United 
States;  and,  to  guard  against  any  fraud  upon  the  intent  of  the 
provision,  it  adds  that  such  removal  must  be  for  a  permanent  resi- 
dence. The  gift  of  the  homestead  to  the  daughter  is  simple  and 
absolute.  The  gift  of  the  residue  of  the  estate,  real  and  personal, 
is  trammeled  with  five  "  express  conditions  ";  and  it  will  be  seen 
that  they  were  conditions  which  could  not  be  complied  with, 
except  by  such  of  the  devisees  as  might  be  fortunate  enough  to 
have  ample  means  for  that  purpose  at  their  command.  A  novel 
penalty  is  imposed  upon  the  son  for  supposed  misconduct  of  the 
federal  government,  in  respect  to  which  no  blame  is  imputed  to 
him.  The  entire  income  of  the  share,  of  which  he  is  the  ostensible 
devisee,  is  given  for  life  to  his  sister,  to  her  own  use  and  benefit, 
unless  the  damages  which  she  is  alleged  to  have  sustained  on  her 
James  River  property,  and  her  Point  Comfort  property,  be  reim- 
bursed by  the  federal  government ;  but  the  theory  of  reimburse- 


EVIDENCE.  185 

ment  is  not  to  be  extended  to  her.  She  is,  from  that  time,  to  re- 
ceive his  income  no  longer,  but  what  she  has  theretofore  received 
she  is  to  retain  in  her  own  right. 

Reading  the  will  in  the  light  of  the  evidence,  we  find  that,  by 
the  changes  it  effects  in  the  testamentary  dispositions,  a  large 
share  of  the  inheritance,  which  would  otherwise  have  gone  to  the 
irrandson,  is  transferred  to  the  daughter,  who  is  substituted  as 
trustee  in  place  of  the  son,  and  she  is  to  receive  his  income  during 
his  minority,  and  to  apply  so  much  of  it  as  may  be  necessary  to 
his  maintenance,  education,  and  support.  The  devise  to  the 
grandson  is  fettered  with  a  limitation  over  to  her  and  her  brother ; 
in  case  either  of  his  death  before  he  reaches  the  age  of  twenty- 
one,  whether  with  or  without  children,  or  of  his  death  afterward, 
without  children,  whether  he  die  married  or  unmarried.  It  is 
scarcely  necessary  to  add,  that  there  was  no  such  provision  in  the 
original  will,  and  that  it  had  its  origin  in  a  special  clause  in  Mrs. 
Tyler's  written  instructions.  In  the  light  of  the  evidence,  it  also 
becomes  manifest  that,  of  six  principal  clauses  in  the  will,  three 
have  no  practical  operation  or  apparent  purpose,  unless  by  way  of 
palliation  or  apology  for  the  provisions  of  the  other  three.  It  is 
due  to  the  draughtsman  to  bear  in  mind  that  the  limitation  to  the 
term  of  Mrs.  Tyler's  life,  of  the  gift  to  her  of  the  income  of  her 
brother,  was  a  departure  from  her  instructions,  and  was  only  as- 
sented to  by  the  mother,  on  his  suggestion  that  in  the  original 
form  it  would  be  illegal. 

A  still  more  striking  illustration  of  the  diplomatic  indirection 
which  marks  the  will,  is  found  in  the  clause  charging,  personally, 
upon  the  residuary  devisees,  the  payment  of  all  the  debts  of "  the 
testatrix.  Even  if  we  dismiss  from  our  view  the  undisputed  fact, 
that  she  held  the  hulk  of  the  property  by  free  gift  from  her  children, 
it  ie  not  easy  to  believe  that  a  mother,  with  an  intelligent  compre- 
hension of  the  effect  of  such  a  provision,  would  personally  charge 
her  only  son  with  the  payment  of  three-eighths  of  her  mortgages, 
and  other  debts,  amounting  to  nearly  $50,000,  knowing  that  his 
property  consisted  only  of  a  small  farm,  mortgaged  for  the  greater 

portion  of  the  purchase  money ;  that,  by  another  provision  of  her 
will,  he  was  cul  off,  in  all  human  probability  for  life,  from  the  in- 
come of  hi-  inheritance  ;  and  that,  by  an  additional  clause,  she  had 
prohibited   any  partition  or  sale  of  the  property  devised,  without 


186  UNDUE  INFLUENCE.— FRAUD. 

his  sister's  consent,  unless  on  the  condition  of  becoming  a  volun- 
tary exile  from   his  country.     It  is  equally  difficult  to  suppose 
that  the  effect  of  the  provision  was  not  comprehended   by  the 
writer  of  the  instructions,   who,  originally,  proposed  to  make  it 
still    more   stringent   by  directing  the   payment   of   such  debts, 
whether  principal  or  interest,  "  as  they  fall  due'n;  a  clause  so  un- 
reasonable, under  the  circumstances,  that  the  draughtsman  took 
the  responsibility  of  omitting  it  in  preparing  the  will  for  execu- 
tion.    The  payment,   however,  of  three-eighths  of  these  debts  is 
made  an  "express  condition"  of  the  ultimate  benefit  of  the  devise 
to  the  son,  after  the  death  of  the  sister.     So  far  as  the  proof  en- 
ables us  to  judge,  he  was  without  the  means  to  make  such  pay- 
ment.    The  property  nominally  devised  to  him  was  so  locked  up, 
in  pursuance  of  Mrs.  Tyler's  instructions,  that  he  could  not  raise 
the  amount  either  by  sale  or  by  mortgage  of  his  interest ;  and  the 
practical  effect  would  be,  in  the  ordinary  course,  a  forced  sale  of 
the   property,  Mrs.  Tyler  being  the  only  member  of  the  family 
whose  private  fortune  would  enable  her  to  become  the  purchaser ; 
and  who,  irrespective  of  this  resource,  was  provided  with  ample 
means,  under  the  express  provisions  of  the  will.      It  is  incredible 
that  the  mother  could  have  had  an  intelligent  and  deliberate  pur- 
pose to  put  her  son  so  completely  in  the  power  of  a  sister,  who 
entertained  unfriendly  feelings  toward  him,   and   who   was   not 
merely  succeeding  to  the  principal  portion  of  his  birthright,  but 
succeeding  to  it  through  a  title  derived  from  him,  by  free  gift. 
Such  a  purpose,  on  the  part  of  the  mother,  would  have  been,  not 
only  ungrateful,  but  unnatural.     If  it  originated,  however,  with 
the  daughter,  there  was  much  to  palliate  it.     Her  relations  to  her 
brother  were  not  such  as  to  lead  her  to  appreciate  its  injustice. 
She  was  under  no  special  obligation  to  him  ;  and  it  was  natural 
for  her  to  feel  that  her  own  interests,  and  those  of  her  children, 
were  those  in  which  she  was  most  nearly  concerned.     She  had  the 
right  to  exercise  the  influence  springing  from  family  ties,  services, 
affection,  or  gratitude,  to  the  extent  even  of  importunity,  without 
subjecting  herself  to  just  censure  or  reproach.     So,  in  regard  to 
the  orphan  son  of  her  dead  sister,  it  was  very  natural   for  Mrs. 
Tyler  to  feel  that  she  had  a  stronger  claim  to  inherit  his  estate, 
than  his  future  wife,  or  his  children  born  before  he  arrived  at  the 
age  of  twenty-one ;   but  it   is   impossible   to   believe   that   Mrs. 


EVIDENCE.  187 

Gardiner,  in  disposing,  at  her  own  death,  of  a  property,  for  a 
large  part  of  which  she  was  indebted  to  the  bounty  of  a  deceased 
daughter,  could,  seriously,  think  it  right  to  tie  it  up  in  the  hands 
of  that  daughter's  only  son,  to  fetter  his  power  of  alienation, 
either  by  deed  or  by  will,  and  to  affix  a  limitation  for  the  benefit 
of  her  own  heirs,  to  the  exclusion  of  his  wife  and  children.  If 
the  last  will  is  established,  it  must  be  by  closing  our  eyes  to  the 
obvious  legal  effect  of  facts  established  by  undisputed  evidence, 
and  falling  back  on  the  arbitrary  maxim,  sic  volo,  sic  jiibeo. 
This  we  cannot  do  without  subverting  settled  rules  of  law,  which 
we  are  bound  to  maintain  and  enforce.  Another  significant  and 
controlling  feature  of  the  case,  in  view  of  the  helpless  and  dying 
condition  of  Mrs.  Gardiner,  is  the  fact  that  the  written  instruc- 
tions for  the  will  were  prepared  by  the  principal  beneficiary. 
The  rule  of  law  on  this  subject  is  well-settled.  It  has  been  re- 
peatedly announced  by  this  court,  and  perhaps  nowhere  with 
more  precision  and  directness  than  by  the  present  Chief-Judge,  in 
pronouncing  judgment  on  the  will  of  Henry  Parish.  "  The 
maxim,  qui  se  scripsit  hceredem"  said  the  learned  judge,  "has 
imposed  by  law  an  additional  burden  on  those  claiming  to  establish 
a  will,  under  circuit istances  which  call  for  the  application  of  that 
rule ;  and  the  court,  in  such  a  case,  justly  requires  proof  of  a 
more  clear  and  satisfactory  character.  Such  a  condition  is  ex- 
hibited by  the  testimony  in  the  present  case.  The  two  codicils 
under  consideration  were  exclusively  for  the  benefit  of  Mrs. 
Parish,  with  the  exception  of  the  charitable  gifts;  and  although 
they  were  not  actually  written  by  her,  yet  they  were  drawn  up  at 
her  suggestion,  upon  her  procurement,  and  by  counsel  employed 
by  her.  She  prepared  and  gave  the  instructions  for  them,  and,  in 
judgment  of  law,  they  must  be  regarded  as  written  by  herself. 
•  Facit  per  alium,  facit  per  8e?  y  (Delafield  v.  Parish,  25  X.  Y. 
35.) 

[n  this  case  there  is  no  proof  or  pretence  that  the  instructions 

were  either  written  or  dictated    by  the  testatrix.       It  appears,  from 

the  testimony  of  the  draughtsman,  that  Mrs.  Gardiner  expected 
them  to  proceed  from   Mrs.  Tyler,  ami  not  from  herseli  ;  and  that 

die  did  not  know,  on  the  day  the  will  was  executed,  whether  such 
instructions  were    written    or  oral,  though    it    is    proved    that    they 

were  written  by  the  daughter  two  days  before  she  transmitted  them 


188  IXDUE  INFLUENCE.— FRAUD. 

to  the  draughtsman.  The  use  in  the  instructions  of  the  mother's 
name  is  not  evidence  that  they  were  dictated  by  her ;  and  in  the 
absence  of  such  proof,  upon  the  state  of  facts  here  shown,  the  legal 
presumption  is  that  they  were  not  so  dictated,  and  that  they  were 
prepared  by  the  party  in  whose  handwriting  they  appear.  (Ingram 
v.  Wyatt,  1  Haggard  384,  439 ;  Croft  v.  Day,  1  Curteis  853,  856; 
Baker  v.  Batt,  Id.  125.)  In  the  case  first  cited,  it  was  objected 
that  the  rule  was  severe  in  its  operation,  as  the  party  who  wrote 
the  instructions  could  not  testify  ;  but  the  court  said  :  "  They  are 
in  the  handwriting  of  Richard  Wyatt,  the  father,  a  quarter  as  un- 
favorable, perhaps  more  so,  as  feeling  a  stronger  interest  than 
even  Henry  Wyatt  himself.  It  has  been  said  that  Richard  Wyatt 
was  incapacitated  by  the  state  of  his  faculties  from  giving  evidence ; 
that  lie  could  not  be  examined  ;  that  he  might  have  proved  receiv- 
ino-  these  instructions  from  the  deceased  himself.  That  is  mere 
conjecture,  which  cannot  compensate  for  proof.  If  the  evidence 
is  by  accident  defective,  the  misfortune,  especially  in  such  a  case 
as  the  present,  must  fall  upon  the  party  upon  whom  the  burden  of 
proof  lies."  (1  Haggard  439.)  In  the  present  case,  even  this  con- 
sideration cannot  be  urged.  Mrs.  Tyler  was  at  liberty  to  testify, 
but  chose  not  to  be  examined,  and  to  leave  the  matter  as  it 
stood. 

Keeping  in  view,  as  we  must,  the  dying  condition  of  Mrs. 
Gardiner,  at  the  time  the  transaction  in  question  occurred,  the 
force  of  the  fact  that  the  beneficiary  wrote  the  instructions  and 
originated  the  will  is  not  necessarily  overcome  by  the  circumstance 
that  they  were  afterward  accepted  by  the  testatrix,  and  that  she 
assented  to  the  will  in  which  they  were  embodied.  The  observa- 
tions, in  one  of  the  opinions  delivered  in  the  Parish  case,  are 
specially  pertinent  to  this  point.  "  The  whole  evidence  of  the 
case,"  says  the  learned  judge,  "  places  him  in  a  position,  where  an 
enfeebled  intellect,  though  far  from  losing  its  intelligence  and  its 
capacity  to  do  ordinary  business,  may  well  be  presumed  unequal  to 
resisting  reiterated  importunities  from  one  in  her  relative  position. 
It  would  seem  plain  that  she  could  have  exercised  an  influence  in 
regard  to  this  codicil  which  would  not  leave  him  to  the  exercise  of 
his  own  free  will.  Are  there  any  circumstances  in  this  case  to 
show  that  she  did  so  ?  Or,  does  it  appear  that,  having  the  power, 
she  gained  a  victory  over  her  naturally  excited  feelings,  and  mag- 


EVIDENCE.  189 

nanimousl y  forbore  to  use  it  ?  The  whole  burden  of  this  codicil 
is  for  her  benefit.  Supposing  that  it  was  made  under  her  con- 
trol, se  scripsit  hceredem  ;  nor,  upon  this  supposition,  would  Mr. 
Lord's  presence,  and  the  fact  that  Mr.  Parish  assented  intelligently, 
and  deliberately,  and  in  detail,  to  the  provisions  of  the  instrument, 
relieve  her  from  that  position ;  for  the  influence  was  easily  exer- 
cised, when  once  its  subject  had  been  brought  to  submit  to  it,  and 
in  a  way  not  at  all  suspicious,  a  way  not  likely  to  be  observed  by 
one  who  had  no  idea  of  its  existence."     (25  N.  Y.  92.) 

Thus  Swinburne  says,  in  commenting  upon  the  effect  of  a  testa- 
tor's assent  under  similar  circumstances :  "  It  is  to  be  presumed 
that  the  testator  did  answer  yea,  rather  to  deliver  himself  from  the 
importunity  of  the  defendant,  than  upon  devotion  or  intent  to 
make  his  will,  because  it  is,  for  the  most  part,  painful  and  grievous 
to  those  that  be  in  that  extremity  to  speak  or  be  demanded  any 
question,  and,  therefore,  are  ready  to  answer  any  question,  almost, 
that  they  may  be  quiet;  which  advantage,  crafty  and  covetous 
persons,  knowing  very  well,  are  then  most  busy,  and  do  labor  with 
tooth  and  nail  to  procure  the  sick  person  to  yield  to  their  demands, 
when  they  perceive  he  cannot  easily  resist  them,  neither  hath  time 
to  revoke  the  same  afterward,  being  then  passing  to  another  world. 
And,  therefore,  worthily,  and  with  great  equity,  is  that  to  be 
deemed  for  no  testament,  when  the  sick  person  answereth  yea,  the 
interrogation  being  made  by  a  suspected  person,  as  well  in  respect 
of  presumption  of  deceit  in  the  one,  as  of  defect  of  meaning  of 
making  a  testament  in  the  other.  And  this  is  true,  especially 
when  there  is  a  former  testament ;  for  that  is  not  to  be  revoked  by 
a  Becond  testament,  made  at  the  interrogation  of  another  in  manner 
aforesaid."  In  the  subsequent  passage,  he  adds:  "  But,  what  if  a 
will  be  brought  to  the  sick  man.  which,  being  read  over  in  his 
hearing,  and  he  demanded  whether  the  same  shall  stand  for  his 
will  and  testament,  answereth  yea,  and  it  doth  not  appear  whether 
the  same  was  written  and  prepared  by  the  direction  of  the  sick 
man.  or  else  of  his  kin-folk  and  friends,  whether  it  is  to  be  pre- 
sumed  to  have  been   prepared   by  his  direction  or  by  theirs?     It 

ineth.  by  the   rich  man,  in  favor  of  the  testament  ;    but,  when  it. 

appeareth,  indeed,  to  have  been  made  ready  by  others,  then,  albeit 
the  testator,  being  interrogated,  do  answer  as  before,  il  is  presumed 
that  the  question  was  made  l>y  the  suggestion  or  onsetting  of  the 


190  UNDUE  INFLUENCE. — FRAUD. 

executor,  and  so  the  testament  is  notgood.'"     (Swinburne  on  Wills, 
part  2,  sec.  25). 

Those  are  the  old  landmarks  of  the  law,  and  the  judges  should 
be  the  last  to  remove  them.  There  is  nothing  in  the  present  case 
to  call  for  a  departure  from  well-established  rules,  founded 
in  plain  principles  of  justice,  and  essential  to  the  protection  of 
rights  and  the  prevention  of  fraud.  They  are  tributary  alike  to 
tlie  security  of  the  living,  the  repose  of  the  dying,  and  the  harmony 
of  the  family  relation. 

So  far  as  the  proof  discloses,  the  first  connection  of  the  testatrix 
with  this  will  was  within  eight  hours  of  death.  Its  essential  pro- 
visions are  directly  traceable  to  the  written  instructions,  which 
were  prepared  three  days  before  by  the  daughter,  who  thus  secured 
to  herself  the  bulk  of  the  mother's  estate. 

When  the  principal  beneficiary  under  a  will,  prepared  for 
execution  by  a  party  worn  down  by  disease  and  close  upon  the 
verge  of  death,  assumes  the  responsibility  of  initiating  it,  of  pre- 
paring formal  instructions,  of  employing  the  draughtsman,  of 
selecting  the  witnesses,' of  being  present  at  every  stage  of  the  pro- 
ceedings, and  of  excluding  those  to  whose  inheritance  a  new  direc- 
tion is  given,  it  behooves  such  beneficiary  to  be  provided  with 
evidence  that  the  instrument  expresses  the  honest  and  spontaneous 
purposes  of  the  person  who  is  called  upon,  at  such  a  time,  to  reverse 
the  provisions  of  a  previous  testamentary  disposition,  made  in 
health  and  strength,  in  favor  of  those  having  clear  claims  upon  the 
justice  and  bounty  of  the  testator.  (Delafield  v.  Parish,  25  N.  Y. 
35;  Lee  v.  Dill,  11  Abb.  214;  Lake  v.  Eanney,  33  Barb.  49; 
Bergen  v.  Udall,  31  Barb.  9,  25 ;  Crispell  v.  Dubois,  4  Barb.  397; 
Marsh  v.  Tyrrell,  2  Haggard  87,  110 ;  Barry  v.  Butlin,  1  Curteis 
638.) 

The  studied  privacy  attending  the  preparation  and  execution  of 
the  will,  the  constant  presence  and  vigilance  of  the  principal  bene- 
ficiary, and  her  omission  to  advise  the  son  and  the  grandson  of  her 
mother's  approach  to  death,  are  familiar  and  marked  indicia  of 
the  exercise  of  undue  influence,  under  circumstances  like  those  de- 
veloped by  the  evidence.  (Crispell  v.  Dubois,  4  Barb.  397  ■  Dela- 
held  v.  Parish,  25  N.  Y.  41,  42.)  Swnnburne,  with  his  usual 
qnaint  and  pithy  directness,  speaks  thus  of  the  inferences  deduci- 
ble  from  this  species  of  evidence  :  "  If  the  wife,  being  made  exec- 


EVIDENCE.  191 

utrix,  or  any  other  person  benefited  by  the  testament,  understand- 
ing that  the  testator  is  about  to  alter  his  will,  will  not  suffer  his 
friends  to  come  unto  him,  pretending,  peradventure,  that  he  is 
fast  asleep,  or  in  a  slumber,  or  the  physician  gave  in  charge  that 
none  should  come  to  him,  or  pretending  some  other  excuse,  or 
else,  all  excuses  set  apart,  do,  for  charity's  sake,  shut  them  forth  of 
the  doors ;  in  these  cases  the  testament  is  void,  in  detestation  of 
such  odious  shifts  and  practices."  (Swinburne  on  Wills,  part  T, 
sec.  18.) 

The  will  was  made  by  the  testatrix  under  two  false  impressions, 
which  went  to  the  very  root  of  its  provisions;  one,  that  her  daugh- 
ter was  poor,  and  the  other,  that  her  son  was  faithless  and  dishon- 
est, and  that  he  had  purchased  his  farm  with  her  money.     That 
these  were  the  operative  inducements  is  assumed  on  the  part  of 
the  proponent,  as  well  as  the  contestants.     The  influence  of  the 
first  is  apparent  upon  the  face  of  the  will,  and  is  established  by 
extrinsic  evidence  elicited  from  the  witnesses  called  to  support  it. 
The  influence  of  the  second  is  not  only  shown  by  the  provisions  of 
the  will,  but  by  the  letters  introduced  by  the  daughter  to  account 
for  them.     In  view  of  the   prostrate  and  dying  condition  of  the 
mother,  of  the   fact  that  the  will  originated   in   the  instructions 
written  by  the  daughter,  and  of  the  various  indicia  of  fraud  which 
surround  the  whole  transaction,  the  case  is  within  the  principle 
settlci  1  by  the  successive  decisions  of  the  Chancellor,  of  the  Su- 
preme Court,  and  of  this  court  in  the  case  of  Lansing  v.  Russell. 
It  is  to  be  regretted  that  the  very  able  opinion  delivered  by  Judge 
Marvin  in  this  court  is  unreported,  but  it  demonstrated,  with  irre- 
sistible clearness  and   force,  the  correctness  of  the  rule  settled  in 
the  courts  below;  that  when  the  beneficiary  is  the  active  agent  in 
procuring  the  execution,  by  one  in  ext '/■>  mis,  of  an  instrument,  dis- 
turbing dispositions  previously  settled,  and  where  the  transaction 
is  surrounded  by  the  usual  indicia  of  undue  influence,  he  is  called 
upon  to  show  thai  the  inducements  which  confessedly  led  to  the 
change  were  not  unfounded  and  illusory.  (3  Barb.  Ch.  325, 340 ;  L3 
Barb.  510,  522,  526.)     In  the   present   case,  there  ool  only  is  an 
absence  of  Buch  evidence,  bul  it  is  proved,  affirmatively,  thai  the 
impressions  under  which  the  change  was  made  were  false. 

It  i-  true  thai  the  burden  of  establishing  imposition  and  undue 
influence  rests,  in  the  first  instance,  upon  the  party  bj  whom  it  is 


192  UNDUE  INFLUENCE. — FRAUD. 

alleged.  Fraud  is  never  to  be  presumed  from  the  mere  concur- 
rence of  temptation  and  opportunity,  or  from  the  mere  fact  that 
the  chief  actor  is  also  the  principal  beneficiary.  It  must  be  estab- 
lished by  affirmative  evidence.  It  is  thus  established,  however, 
when  facts  are  proved  from  which  it  results  as  an  unavoidable  in- 
ference. When  such  evidence  is  furnished,  the  burden  of  repel- 
ling the  presumption,  to  which  it  leads,  is  cast  upon  the  party  to 
whom  the  fraud  is  imputed. 

It  is  not  to  be  supposed  that  fraud  and  undue  influence  are  or- 
dinarily susceptible  of  direct  proof.     Subscribing  witnesses  are 
called  to  attest  the  execution  of  wills,  but  not  the  antecedent 
agencies  by  which  they  are  procured.     The  purposes  to  be  served 
are   such   as   court    privacy  rather   than   publicity.      "  In   some 
cases,"  as  this  court  said  in  the  case  of   Sears  v.   Shafer,  "  un- 
due influence  will  be  inferred  from  the  nature  of  the  transaction 
alone ;  in  others,  from  the  nature  of  the  transaction,  and  the  exer- 
cise of  occasional  or  habitual  influence."     (2  Seld.   272.)     The 
grounds  for  imputing  it,  as  Sir  John  Nicholl  said,  in  the  case  of 
Marsh  v.  Tyrrell,  "  must  be  looked  for  in  the  conduct  of  the  par- 
ties, and  in  the  documents,  rather  than  in  the  oral  evidence.     The 
necessary  inferences  to  be  drawn  from  that  conduct  will  afford  a 
solid  and  safe  basis  for  the  judgment  of  the  court.     "Where  the 
oral  evidence  harmonizes  with  those  evidences,  a  moral  conviction 
rightfully  follows ;  but  the  depositions,  where  they  are  at  variance 
with  the  conduct  of  the  parties,  and  with  the  res  gestae,  are  less  to 
be  relied  upon."     (2  Haggard  84.)     It  was  held,  in  this  State,  by 
the  Court  of  Errors,  that  a  circumstance  indicative  of  undue  influ- 
ence was  the  fact,  common  to  that  case,  and  to  this,  that  the  donor 
was  brought,  before  the  execution  of  the  instrument,  to  a  state  of 
causeless  alarm  as  to  the  condition  of  his  property,  and  of  ground- 
less suspicion  against  members  of  his  own  family.     (3  Cow.  537, 
572.)     So,  in  the  Parish  will  case,  it  was  said,  in  the  course  of  the 
comments  upon  the  circumstances,  raising  a  presumption  of  undue 
influence  by  the  principal  beneficiary :  "  Direct  evidence  of  her 
control  in  these  matters,  of  her  actual  exercise  of  undue  influence 
in  procuring  her  will  to  be  executed  by  him,  could  hardly  be  ex- 
pected.    The  means  of  keeping  the  influence  out  of  sight  were  too 
many,  and  too  easy  of  application.     But,  when  such  is  the  array  of 
circumstances,  when  such  a  result  is  attained  without  any  more 


EVIDENCE.  193 

substantial,  apparent  cause,  we  are  justified  in  saying,  from 
the  evidence,  that  the  only  cause  to  be  inferred,  which  is  in  the 
least  degree  adequate  to  produce  the  result,  is  a  long-continued, 
persistent,  overpowering  influence,  to  which  his  condition  rendered 
him  peculiarly  subject,  and  which  she  was  as  peculiarly  in  a  posi- 
tion to  exercise."     (25  X.  Y.  95.) 

In  the  present  case,  all  the  controlling  facts  tend  to  one  inevita- 
ble conclusion.     "When   the  antecedent  and  surrounding  circum- 
stances  are  grouped  in  their  appropriate  relations,  they  carry  to  the 
conscience  and  the  understanding  the  clear  conviction  that,  when 
the  mother  affixed  her  signature,  she  was  executing  the  daughter's 
will.     It  is  no  sufficient  answer  to  the  presumption  of  undue  infiiv 
ence,  which   results  from  the  undisputed  facts,  that  the  testatrix 
•was  aware  of  the  contents  of  the  instrument,  and  assented  to  all  its 
provisions.     This  was  the  precise  purpose  which  the  undue  influ- 
ence was  employed  to  accomplish.     That  consideration  was  urged 
in  the  case  of   Bridgman  v.  Green;  but  Lord  Chief  Justice  Wil- 
mot  very   properly  replied,   that   it  only  tended   to  show,  more 
clearly,  the  deep-rooted   influence  obtained  over  the  testator.     He 
added:  "In  cases  of  forgery,  instructions  under  the  hand  of  the 
person  whose  deed  or  will  is  supposed  to  be  forged,  to  the  same 
effect  with  the  deed  or  the  will,  are  very  material ;  but  in  cases  of 
undue  influence  and  imposition  they  prove  nothing,  for  the  same 
power  which   produces  one  produces  the  other."     (Wilmot,  70.) 
In  the  case  of  Huguenin  v.  Basely,  Lord  Eldox  said  :  ''The  ques- 
tion   is.  not  whether  she   knew  what  she  was  doing,  had  done,  or 
proposed  to  do,  but  how  the  intention  was  produced."     |  l  I  V~e 
299.)     In  a  case  somewhat  analogous  to  the  present,  where  the  re- 
lations of  the   parties  wore  reversed,  and  the  execution  of  a  deed 
was  obtained   by  undue  influence  of  the   parent   over  the  child. 
Judge   Emot]    said:  "If  the  mind  of  the  donor  was  broughf  to  a 
purpose,  preconceived  by  the  parent  for  his  own  sole  advantage 
by  an  influence  which  she  could  nol  escape  in  the  circumstances  in 
which   she  was  placed,  and  which  was  deliberately  used  to  effect 
such  a  purpose,  then  that  influence,  or  its  exercise,  was  undue  and 
improper."     (31   Barb.  25.) 

We  think  the  surrogate  was  right  in  rejecting  the  instrument 
propounded  for  probate;  and  we  have  nol  arrived  al  this  conclu- 
sion, without  giving  to  the  que  tions,  raised  by  the  respective  par- 
L3 


194  UNDUE  INFLUENCE. — FRAUD. 

tics,  that  full  and  careful  consideration  winch  seemed  due  to  their 
interest  and  importance. 

It  is  proper  to  add,  that,  if  we  had  arrived  at  a  different  con- 
clusion, the  judgment  of  the  court  below  must  still  have  been 
reversed.  As  that  decision  was  founded  upon  a  conclusion  on  a 
question  of  fact,  adverse  to  that  of  the  surrogate  by  whom  the  will 
was  rejected,  the  Supreme  Court  had  no  authority  to  adjudge  that 
the  instrument  be  admitted  to  probate,  but  should  have  coupled 
its  order  of  reversal  with  a  direction  for  a  feigned  issue,  in  ac- 
cordance with  the  provisions  of  the  statute.  (2  K.  S.  66,  sec.  57 ; 
Alston  v.Jones,  10  Paige  100;  Auburn  Theological  Seminary  v. 
Calhoun,  25  N.  Y.  428.)  That  question,  however,  becomes  unim- 
portant, as  we  think  there  was  no  error  in  the  decree  of  the  surro- 
gate. An  appellate  court  has  no  authority  to  direct  a  feigned 
issue,  unless  it  arrives  at  a  conclusion  on  the  question  of  fact  ad- 
verse to  that  of  the  original  tribunal. 

The  judgment  of  the  Supreme  Court  should  be  reversed,  and 
the  decree  of  the  surrogate  rejecting  the  will  should  be  affirmed. 

The  foregoing  opinion  was  concurred  in  by  Davies,  Ch.  J.,  and 
Wright,  Leonard,  and  Morgan,  JJ. 

Peckham,  J.  (dissenting).  The  probate  of  the  will  was  denied 
by  the  surrogate  upon  the  ground  that  the  respondent,  Mrs.  Tyler, 
had  exerted  undue  influence  over  the  testatrix.  The  Supreme 
Court  were  unanimously  of  opinion  that  no  such  influence  was 
shown. 

It  is  conceded  that  the  will  was  executed  in  legal  form — all 
the  proof  required  by  law  for  that  purpose,  was  given.  The 
burden  of  its  impeachment  then  rested  with  the  contestant.  It  is 
true  the  contestant  makes  a  point  that  the  testatrix  was  incapable 
of  making  a  will  from  the  time  Dr.  Clark  first  saw  her,  on  the  2d 
of  October,  186-1,  until  she  died,  on  the  4th.  But  there  is  no  pre- 
tence for  such  a  position  in  the  evidence.  The  testimony  of  all 
the  witnesses  proves  that  her  mind  was  sound  and  clear.  One 
witness  (the  defendant  himself)  sought  to  qualify  her  capacity  at 
another  time.  He  is  the  only  witness  who  intimated  that  his 
mother's  faculties  had  failed  in  any  degree.  In  his  testimony  he 
says :  "  Her  mental  powers,  for  the  year  prior  to  her  death,  did 
not  appear  so  strong  as  they  had  been  some  two  or  three  years  pre- 


EVIDENCE.  195 

viously.  I  thought  I  saw  a  falling  off  iu  her  mental  faculties." 
The  only  commentary  necessary  upon  this  judgment  of  the  son, 
as  to  his  mother's  comparative  mental  condition  during  the  last 
year  of  her  life,  is  the  fact  that,  for  the  last  eight  months  of  her 
life  he  ru  ver  saw  her.  All  the  witnesses  who  did  see  her  durino- 
that  time  are  unanimous  in  saying  that  her  mind  was  "sound  and 
clear."  Mrs.  Stryker,  with  whom  she  boarded  for  some  three 
months  of  that  time  in  Jsew  York,  and  who  saw  her  every  day, 
says  her  mind  was  "  perfectly  clear  and  bright."  Miss  Cooper, 
who  saw  her  very  frequently,  almost  every  day,  during  the  same 
time,  says,  she  was  of  "sound  mind,  perfectly  sound";  and  so  of 
other  witnesses.  I'esides  that,  three  witnesses  testified  to  the 
soundness  and  clearness  of  her  mind  when  she  executed  this  will. 
She  died  within  four  or  five  hours  thereafter  of  bronchitis,  which, 
like  consumption,  usually  leaves  the  mind  clear,  up  to  the  close  of 
life.  While  in  New  York,  though  in  delicate  health,  and  under 
the  care  of  physicians,  she  was  able  to  attend  to  business  and  walk 
out,  and  did  walk  out,  very  frequently;  she  was  not  confined  to 
the  house.  The  question  in  the  case,  then,  is,  was  this  will  pro- 
cured by  undue  influence?  The  burden  of  proving  such  influence 
rests  upon  him  who  asserts  it.  It  is  alleged  that  the  deceased  was 
easily  influenced.  "Who  proves  this  allegation?  The  same  and 
the  only  witness — the  son  himself.  On  the  5th  of  January,  after 
giving  hi.-  opinion  as  to  "a  falling  off  in  her  mental  faculties,"  he 
adds:  "  Mrs.  Tyler  appeared  to  have  the  most  influence  over  her 
during  the  lasl  year  of  her  life."  Mark,  that  for  the  last  eight 
months  of  that  year,  he  had  never  seen  his  mother.  Such  an 
Opinion,  based  upon  no  facts,  if  evidence  at  all,  is  not  worth,  and 
should  not  receive,  the  slightest  consideration. 

I    have   examined    this  case   with   care,  and   I  have  not  been  able 
t"  find  in  il  the  marks  that  usually  attend  a  will  obtained  by  undue 

influence.     It   is  urged,  as  an  evidence  of  such  influence,  that  the 

deceased  sent  her  son  and  his  family  away  from  her  house  to  his 
own  h0U8e.  The  act  was  right,  eminently  right.  There  were 
twenty   persons   in    one   bouse,  and    this   son    himself   testified    that. 

"the  house  was  \rvy  much  crowded.  \ir\  uncomfortably  so." 
Who  Bhould   leave  '.     The  daughter,  a  widow,  with  six  children, 

with  no  home  elsewhere,  or  the  sun  \  a  man,  with  a  wife  and 
three  children,  and  "  one  of   the   handsomest   farms  on  the  island  " 


196  UNDUE  INFLUENCE. — FRAUD. 

to  go  to,  within  two  and  one-half  miles  of  his  mother.  Should 
she  request  her  son  to  go  to  his  farm,  "  one  of  the  best  on  the  isl- 
and,"  or  should  she  send  her  daughter,  with  her  six  children,  into 
the  street?  Any  man,  with  the  heart  of  a  brother  in  his  bosom, 
could  easily  decide  that  question.  The  mother  did  as  a  kind  mother 
ordinarily  would,  she  sought  to  keep  them  all  in  her  house,  though 
to  her  groat  discomfort.  But  the  peace  of  the  family,  as  she  said, 
required  their  separation.  She  thought  David  did  not  treat  his 
sister  kindly — he  was  not  glad  to  see  her  when  she  returned.  It 
is  true  that  his  letters  show  a  great  readiness  to  quarrel  with  her, 
and  they  heap  gross  personal  abuse  upon  his  sister.  They,  in  fact, 
quarreled,  and,  as  to  this  question,  it  is  immaterial  which  was  to 
blame.  They  must  be  separated ;  and  in  a  letter,  dated  February 
10,  commencing  "  David,"  and  indorsed  "  Mr.  Gardiner,"  not  so 
addressed,  in  kind  terms  she  expressed  her  anxiety  to  have  the 
occupation  of  her  house,  as  she  found  herself  "  too  uncomfortable 
to  endure  it  any  longer."  An  interlineation  of  part  of  a  line  was 
in  her  daughter's  writing.  The  mother's  decision,  as  to  which  one 
should  leave,  was  the  decision  that  every  true  woman  in  the  land 
would  have  made,  under  like  circumstances. 

In  a  letter  to  his  mother,  written  on  the  14th  of  March,  after 
he  had  left  the  house,  the  son  says :  "  I  was  fully  aware  of  the 
discomforts  and  inconvenience  to  which  you  submitted  so  patiently, 
in  a  crowded  house,  and  with  impaired  health.  It  appeared  to  me 
quite  unnecessary — certainly,  I  was  not  the  cause  of  it."  He  not 
the  cause?  Then  who  was?  Did  his  family  (himself  and  wife, 
three  children  and  servant,)  add  nothing  to  the  crowd  ?  Surely, 
his  widowed  sister  and  her  children  had  as  much  ri^ht  as  this  son 
and  his  in  her  mother's  house.  In  the  same  letter  he  adds :  "  Had 
I  left  your  house  otherwise  than  at  your  request,  I  could  not  have 
felt  that  I  had  done  right  toward  you."  This  would  look  as  if  he 
thought  he  had  been  staying  there  for  the  benefit  of  his  mother, 
not  his  own.  Yet,  when  requested  to  leave,  and  allowed  to  go 
to  his  own  farm,  this  jealous,  suspicious  son  is  greatly  outraged. 
Under  date  of  the  8th  of  March,  he  complains  to  his  mother  that 
he  has  been  "  thrust  from  her  presence  with  a  family  of  little  ones, 
through  a  course  of  deception,  misrepresentation,  and  intrigue 
practiced  upon  her."  This  "  deception,"  etc.,  is  emphatically  de- 
nied by  his  mother.     But,  under  the  facts,  as  conceded  by  the  son 


EVIDENCE.  197 

(of  an  overcrowded  bouse,  causing  "discomforts  and  inconvenience 
to  a  mother  with  impaired  health  "),  how  unmanly  and  unjust  his 
complaints  at  the  action  of  his  mother. 

It  is,  also,  insisted,  as  an  evidence  of  undue  influence,  that  the 
intestate  labored  under  a  misapprehension  of  facts,  and  that  this 
alleged  delusion  is,  that  she  was  induced  to  believe  that  her  daughter 
was  poor  and  her  son  rich.     The  will  and  the  testimony  both  show 
that  deceased  knew  the  actual  facts  as  to  each ;  she  stated  them 
several  times,  and  they  are  nowhere  contradicted.     The  deceased 
never  said  in  her  will,  or  elsewhere,  that  her  son  was  rich.     She 
said, and  its  truth  is  not  denied, that  he  had  one  of  the  handsomest 
farms  on  the  island,  and  his  wife's  father  was  rich.     The  character 
of  the  farm  is  not  denied,  and  the  wealth,  of  the  wife's  father  is 
proved   to  be  a  fact.      As  to  the  poverty  of  her  daughter,  the 
deceased  knew  the  daughter  had  some  property  in  Virginia,  but 
she  also  knew  that  she  had  suffered  great  losses  during  the  civil 
war.     She  made  the  larger  provision  for  her,  because,  as  she  ex- 
pressly stated  in  her  will,  her  daughter  had  "been  subjected  to 
much  injury  and  loss  during  the  existing  war,  and  had  been  obliged 
to  leave  her  home  and  come  North.'1     No  witness  denies  a  word  of 
that  statement.     It  is  conceded  that  the  daughter  had  some  fifteen 
hundred  acres  of  land  in  Virginia,  on  the  James  river,  and  she  had 
a  summer  house  and  some  three  acres  of  land  near  Point  Com- 
fort.     In  the  will  this  property  is  particularly  mentioned.     She 
gives  her  the  income  of  a  larger  share  <>f  the  city  property  lot- 
life,  ••unless  the  loss  and  damage  which  her  property,  situated  on 
the  James  river,  and  her  property  situated  near  Old  Point  Com- 
fort, in   the  State  of  Virginia,  shall  have  been  sooner  restored  to 
her  by  the  federal  government."    It  appeared,  from  the  testimony, 
thai  the  farm  of  fifteen  hundred  acres  "was  in  ruins";  that  the 
furniture  in  the  dwelling  was  all  destroyed,  even  to  the  "curtains." 
There  i-  no  evidence  in  the  case  as  to  the  value  of  the  daughter's 
property  in  Virginia.     It  could  afford  her  no  income     none  what- 
ever.    If  we  might  refer  to  our  individual  knowledge  and  infor- 
mation  a-  to  auch  land,  we  should  not    place  a  high  value  upon  the 
worn  out  land  of  Virginia,  which  had  laid  in  ruins  for  some  years 

during   the   ravages  of  the   civil  war,  especially  if  the  owner- were 

compelled  to  pay  taxes  upon  them.     There  are.  probably, thousands 
of  auch  places  for  sale  now  in  the  South,  and  few  or  no  purchasers. 


198  UNDUE  INFLUENCE. — FRAUD. 

Could  a  woman,  with  a  family  of  six  children,  possessed  of  that 
ruined  property  alone,  with  nothing  elsp  to  live  upon,  be  regarded 
or  spoken  of  as  otherwise  than  poor?  The  civil  war  was  then 
still  pending.  This  is  all  the  property  the  daughter  had,  or  it  is 
claimed  she  had ;  and  the  fact  was  well  known  to  the  deceased  for 
a  year  prior  to,  as  well  as  at,  the  making  of  the  will.  Upon  these 
facts,  no  one,  who  does  not  wilfully  deceive  himself,  or  wish  to  de- 
ceive others,  can  claim  that  Mrs.  Gardiner  was  under  any  delusion 
as  to  her  daughter's  property. 

The  other  misunderstanding,  as  claimed,  is,  that  in  her  will,  she 
releases  to  her  son  all  claims  she  has  against  him  for  moneys  ad- 
vanced for  the  purchase  of  his  farm,  and  all  other  claims  and  de- 
mands against  him  when,  in  truth,  she  had  made  no  such  advances, 
and  had  no  claims  against  him.  There  are  several  answers  to  this 
proposition. 

J^h'st.  The  evidence  is  quite  satisfactory  that  she  had  made  ad- 
vances to  purchase  the  farm,  and  that  her  son  was  indebted  to  her. 
The  farm  cost  $13,250,  and  $5,000  had  been  paid  on  it :  the 
mother's  place  cost  $9,500,  and  $4,500  had  been  paid  thereon. 
The  son  lived  with  his  mother  after  he  attained  his  majority,  and 
after  his  father's  decease,  from  1844  to  1849 — five  years — sup- 
ported entirely  by  her  in  handsome  style — I  infer  from  the  locality 
in  the  city.  He  had  been  admitted  to  the  bar,  but  never  practiced. 
In  1849  he  went  to  California,  he  says  at  his  own  expense,  mined 
and  traded  there,  and  returned  in  June,  1851.  From  that  time 
until  February,  1864,  he  lived  with,  and  was  supported  by,  her. 
He  was  married  in  1860 — it  must  have  been  in  the  first  of  the 
year,  if  not  in  1859;  and  his  wife  and  family  all  lived  with  his 
mother.  He  kept  a  horse  and  a  servant.  Prior  to  the  arrival  of 
his  sister  and  children  in  the  last  of  November,  1863,  the  family 
consisted  of  the  deceased  and  her  grandson,  her  son  David  and  his 
family,  although  some  of  his  sister's  children  were  there  prior  to 
their  mother's  arrival.  Yet  for  the  two  years  prior  to  1864,  with  a 
property,  estimated  by  the  son,  at  about  $135,000,  exclusive  of 
debts,  the  expenses  of  the  family  considerably  exceeded  the  income, 
under  his  management.  He  says  that  $3,500  must  be  raised  to 
pay  back  taxes  and  assessments,  besides  one  $800  assessment  then 
unpaid.  To  this,  add  $1,200  a  year  (his  charge  for  attending  to 
his  mother's  business),  and  $500  a  year  for  extra  supplies  to  his 


EVIDENCE.  199 

mother  from  his  farm,  as  he  claims,  and  the  deficiency  of  his 
mother's  property,  under  his  care,  to  meet  current  expenses,  was 
large.  Who  spent  the  money — the  large  income  from  her  prop- 
erty? Where  did  it  go?  The  uncontradicted  statement  of  the 
mother  was,  that  she  "  practiced  the  greatest  possible  economy,  and 
entered  into  no  expenses  to  serve  her  own  purposes,  and  made  no 
purchases  for  house  or  clothes  that  she  could  avoid."  She  even 
kept  but  one  horse,  as  I  infer  from  his  letter,  speaking  of  the  ex- 
penses of  keeping  her  "  horse."  The  son  and  his  family,  his  horse 
and  his  servant  during  this  time,  constituted  the  large  share  of  the 
whole  establishment.  What  services  did  he  render  that  compared 
in  value  to  the  amount  of  these  heavy  expenses,  incurred  largely 
for  him  and  his  family?  From  185 L  to  1864  he  attended  to  his 
mother's  business.  What  did  he  do  ?  He  says  he  was  engaged  in 
collecting  the  rents,  attending  to  repairs,  and  erected  buildings  in 
New  York.  Some  buildings  were  torn  down  in  the  Bowery,  and 
were  erected  in  1856,  and  completed  in  1857,  under  his  superin- 
tendence, as  he  says.  Yet,  architects  were  employed  to  draw  the 
plans  and  oversee  the  erection,  for  which  his  mother  paid.  All  he 
did  was,  he  "  was  there  occasionally  "  (to  use  his  own  language) 
"  to  see  that  the  work  was  properly  done  " — this  "  occasional "  at- 
tendance running  through,  perhaps,  a  year  and  a  half.  As  to  the 
rents,  etc.,  he  literally  did  nothing,  as  appears  in  his  own  evidence. 
It  was  all  done  by  sub-agents,  who  were  paid  full  prices  (five  per 
cent.),  as  the  son  testified  on  cross-examination,  "for  collecting  the 
rents,  paying  the  bill  for  repairs,  attending  to  the  lettings,  ousting 
tenants  in  case  rents  were  not  paid,  attending  to  the  insurances 
generally,  sometimes  to  the  taxes,  making  up  their  accounts  and 
handing  them  to  him."  What,  then,  did  the  son  do  in  reference 
to  .ill  these  services?  He  answers:  "  I  handed  them  (the  accounts) 
to  my  mother."     He  did  not  even  do  that,  in  fact.     The  accounts 

Of   her  rent-,  for  the  year-  I  S.V.I  to   L863,  inclusive,  were  not  given 
her  until  May  6,  I  Ml  I,  ;is  appears  by  his  letter  of   that  date,  though 

repeatedly  requested  to  do  so.     lie  ami  his  mother,  together,  occu- 
pied the  place  where  -he  died,  of  aboul  eleven  and  a  quarter  acres, 

and    he   Bays   he   directed    the    hands   how  t'»  manage  that.      Bui    it 

would  -en, i   that   he  failed,  from   Is;,:;  to  L 864,  to  raise  oats  or 
straw  enough  lor  hi-  horse  and  hie  mother's  horse,  hut  he  was  com 
pelled  to  get  the  deficiency  from  his  own   farm.     He  kepi   his 


200  UNDUE  INFLUENCE. — FRAUD. 

mother's  money  and  his  own  together,  promiscuously,  in  the  same 
bank  account.  Ilis  papers  did  not  show,  and  he  could  not  tell, 
what  particular  money  he  had  deposited,  or  for  what  he  had  drawn 
it  out.  lie  sold  the  East  Hampton  property  for  his  mother,  in 
L852,  for  $5,000.  Pie  says  he  paid  $3,000  of  it  on  a  mortgage, 
and  the  other  $2,000  was  used  in  family  expenses.  This  is  all  the 
reduction  his  services  ever  made  on  any  mortgage.  When  inquired 
of,  whether  the  rents  and  income  were  not  sufficient  to  support  the 
family,  he  answers:  "I  don't  know."  Though  he  had  the  entire 
charge  as  agent,  he  had  no  idea  of  the  amount  of  the  family  ex- 
penses, nor,  from  the  nature  of  the  case,  did  he  know  his  own, 
which,  he  claims,  were  small,  and  some  of  which,  he  claims  were 
paid  from  his  own  means.  When  removed  from  receiving  the 
rents  of  his  mother,  debts  and  taxes  stand  unpaid,  and  for  months 
his  mother  is  left  without  means  for  household  expenses,  and  tries, 
in  vain,  to  learn  the  condition  of  her  property.  Ultimately  she 
finds  a  deficiency  that  astonishes  her.  He  charges  $1,200  per  annum 
for  services  as  agent,  and  $500  for  annual  supplies  from  his  farm 
from  the  first  year  he  bought  it,  without  being  able  to  specify  any- 
thing that  approached  that  amount.  The  checks  from  his  check- 
books throw  no  more  light  upon  his  account,  so  far  as  the  case 
shows,  than  would  so  many  leaves  from  the  coast  survey.  (It  may 
be  here  added,  that  the  son,  in  answer  to  his  mother's  expressed 
surprise  at  so  great  a  deficiency  in  her  money  matters,  wrote  to  her 
on  the  16th  of  May,  that  he  had  observed  "  rigid  economy,"  and 
"  I  kept  an  account  of  all  expenses  incurred,  appertaining  to  the 
family  as  well  as  my  own  personal  matters."  If  this  were  true, 
where  is  that  account,  and  why  was  it  not  produced  by  him  ?) 

His  answers  seemed  perfectly  natural  to  the  inquiry,  what 
moneys  his  mother  advanced  him  to  buy  the  Northfield  farm : 
"  None,  to  my  knowledge."  So  as  to  what  claims  she  had  against 
him  at  the  time  of  her  death  :  "  No  claim,  that  I  am  aware  of." 
Of  course  he  did  not  know,  and  his  answers  here  were  just  as 
proper  as  they  were  to  the  question,  whether  his  mother's  rents 
and  income  were  not  sufficient  to  support  the  family  without  using 
the  $2,000  proceeds  of  sale  of  the  East  Hampton  property,  and  he 
answered  there  as  here,  "  I  don't  know."  Yet  this  $2,000,  that  he 
"  don't  know  "  whether  it  was  necessary  to  use  for  family  expenses, 
was  received  shortly  before  the  purchase  of  the  Northfield  farm. 


EVIDENCE.  201 

He  says  he  used  the  money  he  made  in  California  to  purchase  that 
farm.  It  was  impossible  for  him  to  say  that,  as  all  his  and  his 
mother's  funds  were  deposited  to  one  account ;  and  how  much  he 
spent  for  the  one  or  the  other,  he  admits  his  utter  inability  to  tell. 
AVhether  an  advance  was  made  with  her  money  or  with  his,  no  one 
could  tell.  He  admits  he  never  furnished  a  dollar  for  the  support 
of  the  family  from  1844  to  1864.  As  between  strangers,  I  think 
no  fair  man  would  hesitate  to  say  that  the  balance  of  the  accounts 
from  this  evidence  was  considerably  against  the  son  at  his  mother's 
decease.  It  is  said  that  his  mother  thought  otherwise,  as  appeared 
by  her  other  will.  If  true,  that  was  in  1858,  and  she  had  not  then 
supported  her  son,  with  his  wife,  and  family,  servant  and  horse, 
for  some  four  years.  Besides,  she  did  not  then  know,  as  appears 
by  her  letters,  the  great  deficiencies  in  her  means,  while  her  prop- 
erty was  under  his  charge. 

There  is  another  consideration.  His  mother,  in  giving  instruc- 
tion- tn  her  lawyer  for  drawing  her  will,  distinctly  told  him  that 
she  had  made  advances  to  her  son  toward  buying  the  Xorthfield 
farm  ;  she  did  not  say  how  much  ;  could  not  state  the  amount ;  but 
she  had  made  some.  Does  the  son  intend  to  say  that  his  mother 
was  guilty  of  a  falsehood  at  that  time?  There  is  no  evading  this 
position  by  saving  that  his  mother  was  then  in  extremis,  or  that 
she  had  been  deceived  by  the  daughter.  As  shown  by  the  testimony 
of  the  most  intelligent,  impartial  witnesses,  who  had  known  her 
for  years,  her  mind  was  shown  to  be,  then,  "as  clear  as  it  had 
been  at  any  time  previous."  The  natural  inquiry  by  the  lawyer, 
on  his  return  with  the  will  drawn,  when  informed  that  she  was 
worse,  whether  there  was  any  doubt  as  to  her  ability  and  capacity 
to  make  a  will,  was  answered  by  the  medical  attendant,  that  "the:-  s 
\\a-  none;  that  her  mind  was  perfectly  clear."  After  conversa- 
tion with  her  as  to  the  execution  of  the  will,  the  lawyer  gives  the 
same  opinion,  and  there  is  no  contradiction. 

A.8  to  the  deception  by  the  daughter,  then-  is  no  proof  that  the 
daughter  ever  -aid  a  word  on  the  subjeel  to  any  one.  In  her  in- 
structions to  the  lawyer,  QOthing   was  said  as  to  other  claims;   but 

the  mother  released  the  son  in  her  will  from  all  other  claims. 

a  witness,  the  son  is  not  presented  in  the  most  favorable 
light.  !!<•  stands  alone,  and  i-  contradicted  by  every  other  as  t<»  a 
material  fact,     lie  destroyed  evidence     letters  of  his  mother,  as 


202  UNDUE  INFLUENCE. — FRAUD. 

he  first  said,  "not  thinking  it  important  to  retain  them";  and  he 
"  accidentally  "  preserved  some.  After  conversing  with  his  lawyer, 
some  days  after,  he  then  says  he  destroyed  them  because  he 
"  thought  they  were  dictated  by  Mrs.  Tyler,  and  he  was  incensed." 
J I  is  indignation  was  discreet.  It  obviously  destroyed  only  such 
letters  as  he  deemed  unfavorable  to  him.  It  carefully  preserved 
the  first,  which,  in  his  View,  this  reason  for  the  destruction  of  the 
others  should  have  clearly  destroyed. 

[The  foregoing  portion  of  the  dissenting  opinion  has  been  given 
as  an  illustration  of  different  views  that  may  readily  be  taken  by 
different  minds,  of  facts  of  the  kind  here  adduced  to  show  undue 
influence.  The  opinion  further  proceeds  at  great  length  to  dis- 
cuss the  evidence  with  a  view  of  showing  that  it  does  not  even 
raise  a  reasonable  suspicion  of  undue  influence,  and  that  the 
authorities  cited  in  the  prevailing  opinion  have  no  bearing  on  the 
case  in  hand.     The  opinion  concludes  as  follows:] 

To  resume : 

This  will  was  executed  according  to  law,  when  the  mind  of  the 
testatrix  was  sound  and  clear.  It  was  carefully  read  over  to,  and 
fully  understood  by,  her— she  expressed  her  gratification  that  it 
was  made. 

It  was  also  prepared  by  her  own  personal  directions  and  instruc- 
tions. 

It  was  in  substance  in  accordance  with  her  wishes  expressed  in 
New  York,  when  her  daughter  was  not  present,  several  months 
prior  to  its  execution. 

There  is  nothing,  rising  to  the  dignity  of  evidence,  to  show  any 
undue  influence  over  the  testatrix. 

The  judgment  of  the  Supreme  Court  should,  therefore,  be 
affirmed. 

Hunt  and  Smith,  JJ.,  were  also  for  affirmance. 

Judgment  reversed,  and  decree  of  surrogate  affirmed. 


ATTORNEY   AND   DRAUGHTSMAN  AS   LEGATEE.  203 

UNDUE    INFLUENCE.— ATTORNEY     AND     DRAUGHTSMAN     AS 

LEGATEE. 

Post  et  al.  t.  Mason  et  al. 

New  York  Court  of  Appeals,  1883. 
(91  N.  Y.  539.) 

Danforth,  J. — John  Post  made  his  will  on  the  13th  day  of 
September,  1874,  and  thereby,  after  giving  to  each  child  $40,000, 
to  his  wife  the  use  for  life  of  $40,000,  and  the  homestead,  with 
remainder  to  his  children,  $20,000  to  the  Ontario  Orphan  Asylum, 
to  a  nephew  $3,000,  smaller  sums  to  his  brother,  to  a  clergyman 
and  others,  to  his  wife's  mother  for  life  a  certain  house  and  lot, 
with  remainder  to  his  heirs,  provided  for  the  improvement  of  his 
father's  burial  place  and  the  erection  of  certain  monuments,  and 
then  appointed  Alonzo  Wynkoop  and  Bradley  Wynkoop,  both  his 
cousins,  and  Francis  O.  Mason,  his  executors  and  trustees  for  cer- 
tain purposes,  and  gave  to  them  in  equal  shares  the  remainder  of 
his  estate,  amounting,  as  it  now  appears,  to  $17,513.06  personal 
property.  He  died  on  the  2Sth  of  September,  1874,  leaving  an 
estate  of  the  value  of  about  $200,000,  and  on  the  24th  of  October, 
1874,  probate  of  the  will  was  duly  granted  by  the  surrogate  of 
Ontario  County.  This  action  was  commenced  in  May,  1878,  by 
the  plaintiffs,  as  the  widow,  heirs,  and  next  of  kin  of  the  testator, 
against  the  defendants,  as  executors  and  residuary  legatees,  praying 
that  the  probate  of  the  alleged  will  be  vacated,  that  the  instrument 
be  declared  not  to  be  the  last  will  and  testament  of  John  Post,  or, 
tailing  in  these  iv^pects,  that  the  plaintiffs  be  declared  to  be  the 
owners  of  the  residuary  estate,  and  the  defendants  adjudged  to  hold 
tin-  same  as  trustees  for  them. 

The  defendants,  by  answer,  put  in  issue  the  case  made  by  the 
Complaint,  and  questions   framed   thereon    were,  on   submission   to 

the    jury,  answered  by  them    in   favor  of  the  defendants.     The 
plaintiffs  then  applied  to  the  Special  Term    for  a  new  trial  upon 

exceptions  takefl  to  the  charge  Of   the    trial    judge,  and    his   refusal 

to  charge  a-  requested  by  their  counsel.     This  was  denied.    The 

court,  theiviiiM.ii,  approved  the  verdict,  and    after    findings   of   fact 

and  law,  on  all  points  adversely  to  the  plaintiffs' case,  ordered  judg- 
ment, dismissing  the  complaint. 

We  find  no  error  in  that  decision.     Firsts  as  to  the  chargej  so 


204  UNDUE  INFLUENCE. — FRAUD. 

far  as  material  to  the  proposition  argued  by  counsel,  the  complaint 
alleged  that  Mason  was  a  lawyer,  and  at  the  death  of  the  testator, 
and  for  one  or  more  years  before  that  time,  his  friend  and  con- 
fidential  attorney  and  counselor;  that  he  wrote  the  will  in  question, 
and  taking  advantage  of  that  relation,  "  improperly  and  illegally, 
if  not  fraudulently,  induced"  the  testator  to  execute  it  in  igno- 
rance of  its  contents  and  effect ;  that  the  instrument  was  never  read 
over  to  him,  and  he  was  never  fully  informed  of  its  contents  ;  that 
its  probate  was  fraudulently  procured  at  a  time  when  the  children 
were  under  the  age  of  twenty-one  years,  and  the  widow  uninformed 
of  its  contents.  The  answer  of  the  defendants  puts  in  issue  every 
allegation  tending  to  exhibit  fraud  or  contrivance  either  as  con- 
cerned the  will  or  its  probate,  and  in  the  most  satisfactory  manner 
details  the  various  consultations  which  led  to  the  will,  and  the  in- 
telligent instructions  given  by  the  testator  for  its  preparation. 
Omitting  immaterial  questions,  those  framed  for  the  jury  were : 
Fourth.  Was  John  Post,  at  the  time  he  made  and  executed  the 
will,  of  sound  and  disposing  mind  and  memory,  and  competent  to 
make  and  execute  it  ?  Fifth.  Was  it  read  over  by  or  to  him  at 
the  time  of,  or  before  its  execution,  and  did  he  understand  it  and 
all  its  provisions  ?  Sixth.  Was  its  execution  procured  by  undue 
influence?  Seventh.  Was  the  probate  fraudulently  obtained? 
Eighth.  Was  the  plaintiff,  Adelaide,  informed  of  the  contents  of 
the  will,  and  if  so,  when  ?  jyinth.  Did  either  of  the  defendants 
intentionally  prevent  either  of  the  plaintiffs  from  becoming  in- 
formed of  the  contents  of  the  will  ?  Upon  the  trial  of  these  ques- 
tions before  the  jury,  it  was  conceded  that  the  signature  to  the 
will  was  that  of  the  testator ;  that  the  statutory  formalities  relating 
to  its  execution  were  complied  with,  and  that  it  was  admitted  to 
probate  at  the  time  above  stated.  Witnesses  were  examined  by 
the  plaintiffs  to  establish,  on  their  part,  the  questions  in  issue. 
They  were  answered  by  the  defendants.  In  his  charge  to  the  jury 
the  learned  judge  dwelt  upon  each  proposition  involved,  in  a  man- 
ner satisfactory  to  the  plaintiffs,  except  as  I  shall  hereafter  state. 
Upon  the  question  of  undue  influence  he  said,  upon  the  relation 
of  client  and  counsel,  "The  law  fastens  a  peculiar  confidence,"  and 
all  that  is  necessary  to  make  the  influence  of  the  latter  undue  is 
that  "they  should  use  the  confidence  reposed  in  them,  unfairly  and 
dishonestly  to  operate  as  a  moral  coercion  upon  the  testator,  and 


ATTORNEY  AND  DRAUGHTSMAN  AS  LEGATEE.     205 

thus  induce  him  to  do  what  he  otherwise  would  not  have  done." 
"  The  law,"  he  said,  "  treats  the  exercising  of  this  unfair  influence 
as  a  fraud,  but  the  law  does  not  presume  that  a  fraud  has  been 
1  committed  in  this  or  any  other  case.  If  a  man  clear  in  his  mind, 
and  competent  to  understand  things,  makes  his  will,  the  mere  fact 
that  he  gives  a  legacy  to  the  counsel  who  draws  it  does  not  invali- 
date the  will  at  all."  "  It  has  this  effect,  however,  if  there  is  any 
evidence  produced,  tending  to  establish  the  fact  that  there  was  this 
undue  influence,  the  law  looks  with  more  jealousy  upon  it  than  in 
other  cases;  it  requires  less  evidence  to  And  undue  influence,  when 
the  will  gives  a  legacy7  to  the  counsel,  than  if  it  was  between  per- 
sons not  holding  the  relation  I  have  adverted  to."  He  added,  "It 
is  incumbent  upon  the  plaintiffs  in  this  case  to  prove  some  circum- 
stances of  suspicion,  some  evidence  of  an  unfair  exercise  of  the  in- 
fluence which  Mr.  Mason  had  over  the  testator,  and  if  they  have 
furnished  such  evidence  it  is  incumbent  upon  the  defendants  to 
show  you  some  evidence  that  no  undue  influence  was  exercised." 
To  this  clause  the  plaintiffs'  counsel  excepted,  and  asked  the  court 
to  charge :  "That  this  will  having  been  written  by  Mr.  Mason, 
who  is  a  legatee,  and  is  shown  to  have  been  for  years  before  the 
will  was  made  the  legal  adviser  of  Mr.  Post,  the  same  is  presumed 
to  he  fraudulent  ;  that  the  law  itself,  without  any  evidence  at  all, 
presumes  that  it  was  obtained  by  fraud  ;  that  the  presumption  was 
against  the  will  until  it  was  overborne  by  satisfactory  evidence." 
The  court  declined,  and  the  plaintiff  excepted.  These  exceptions 
are  to  be  considered  together,  and  they  present  the  question 
whether  a  will  executed  by  one  having  full  testamentary  capacity 
i-.  a-  matter  of  [aw,  to  be  deemed  fraudulent  for  the  simple  reason 
that  it  contains  n  provision  in  favor  of  the  draughtsman  who  was 
and  had  been  the  counsel  of  the  testator.  This  is  apparent  when 
we  read  the  chaige  and  the  requesl  together.  The  court  said: 
"  If  a  man  clear  in  his  mind,  and  competent  to  understand  things, 
make.-  his  will,  the  mere  fact  that  he  gives  a  legacy  to  the  counsel 

who  draws  it  doe-  Qot  invalidate  the  will,"   and  on  t! ther  hand, 

the  appellant  say- :    "The    law    it-elf,  without    any  evidence  at    all, 

presumes  it  was  obtained  by  fraud." 

In  Bindson  v.  Weatherill  (5  De  Gex,  M.  &  Gk  301)  there  is  a 
case  Bomewhai  similar  in  its  fact-,  and  a-  viewed  by  the  court  pre- 
senting the  Bame  question.     The  plaintiff  succeeded  he  fore  the  vice- 


20C  UNDUE  INFLUENCE. — FRAUD. 

chancellor,  on  the  ground  that  a  solicitor  of  a  testator,  to  whom  the 
testator  had  made  gifts,  was  a  trustee  of  those  gifts  for  the  testa- 
tor's heir  at  law  and  next  of  kin,  but  upon  appeal  the  court  thought 
otherwise,  and  deemed  it  unnecessary  to  say  how  the  matter  would 
have  stood  if  undue  influence  or  any  unfair  dealing  had  been  estab- 
lished against  him,  for  no  such  thing  was  done.  Thesolicitor,  they 
say,  "  prepared  his  client's  will,  containing  dispositions  in  his  own 
favor,"  adding,  "there  begins  and  ends  the  case  as  I  view  it.  But 
a  case  so  beginning  and  so  ending  does  not  take  away  the  right, 
either  legally  or  equitably,  of  a  solicitor  to  be,  for  his  own  benefit, 
a  devisee  or  legatee."  This  touches  the  very  point  as  presented  to 
the  trial  judge,  and  to  the  same  effect  are  Coffin  v.  Coffin  (23  JN".  Y. 
9)  and  Nexsen  v.  Nexsen  (2  Keyes  229).  The  proposition  of  the 
plaintiff  excluded  every  circumstance  but  the  occupation  of  the 
legatee,  Mason,  and  his  relation  to  the  testator  and  the  will.  If 
acceded  to  it  would  have  taken  from  the  jury  even  the  contents  of 
that  instrument,  forbidden  them  to  inquire  whether  the  testator 
himself  knew  its  provisions,  or  to  consider  the  amount  of  the 
legacy,  its  proportion  to  the  whole  body  of  the  estate,  its  relation 
to  bequests  to  other  parties,  and  those  persons  who  were  the  natural 
objects  of  the  testators  bounty,  and  other  circumstances  which  had 
been  detailed  in  evidence.  I  do  not  think  it  necessary  to  inquire 
whether  such  rule  might  apply  to  a  controversy  between  an  attor- 
ney and  his  client,  where  the  former  was  seeking  to  enforce  an 
obligation  against  the  latter,  or  to  an  issue  made  upon  the  probate 
of  a  will  under  which  the  attorney  was  the  principal  beneficiary. 
There  is  certainly  no  rule  of  law  which  says  an  attorney  shall  not 
buy  of,  or  contract  with  his  client ;  there  is  only  the  doctrine  that 
if  a  transaction  of  that  kind  is  challenged  in  proper  time,  a  court 
of  equity  will  examine  into  it,  and  throw  upon  the  attorney  the 
onus  of  proving  that  the  bargain  is,  generally  speaking,  as  good  as 
any  that  could  have  been  obtained  from  any  other  purchaser,  or 
in  other  words,  that  the  bargain  was  a  fair  one.  Then  as  to  testa- 
mentary dispositions,  as  one  does  not,  by  becoming  an  attorney, 
lose  the  capacity  to  contract,  neither  is  he  thereby  rendered  inca- 
pable of  taking  as  legatee,  even  under  a  will  drawn  by  himself. 
That  circumstance,  if  probate  was  opposed,  might  in  some  cases 
require  something  more  than  the  usual  formal  proof  of  a  due  execu- 
tion of  the  instrument,  not  because  fraud  was  presumed,  but  because 


ATTORNEY  AND  DRAUGHTSMAN  AS  LEGATEE.     207 

it  might  be  rendered  more  probable  than  in  cases  where  the  direc- 
tions of  the  testator  followed  the  lines  of  relationship.  Coffin  v. 
Coffin,  and  Nexsen  v.  Nexsen  {supra)  go  no  further.  In  the  first, 
the  fact  that  the  draughtsman  of  the  will  was  appointed  executor 
and  legatee  was  said  to  be  suspicious  only  in  connection  with  other 
circumstances  indicative  of  fraud  or  undue  influence,  and  in  the 
other,  although  from  an  estate  of  $15,000,  the  draughtsman  of  the 
will,  who  was  also  the  testator's  agent,  was  appointed  to  receive  all 
but  $3,000,  and  so  became  the  principal  beneficiary  under  it,  the 
court,  citing  Coffin  v.  Coffin  {supra)  held  the  same  way.  Both 
cases  came  up  on  appeal  from  surrogates'  decisions  on  proceedings 
for  probate,  and  require  from  the  proponent  in  such  a  case  testi- 
mony of  a  clear  and  satisfactory  character.  In  Coffin  v.  Coffin 
the  court  sum  up  the  matter  in  the  language  of  Baron  Parke,  in 
Barry  v.  Butlin  (1  Curteis'  Ecc.  037),  and  declare  that  '"all  that 
can  be  truly  said  is,  that  if  a  person,  whether  an  attorney  or  not, 
prepares  a  will  with  a  legacy  to  himself,  it  is  at  most  a  suspicious 
cireuni>tance,  of  more  or  less  weight  according  to  the  facts  of  each 
particular  case,  in  some  of  no  weight  at  all  ....  varying  accord- 
ing to  circumstances,  for  instance  the  quantum  of  the  legacy,  the 
proportion  it  bears  to  the  property  disposed  of,  and  numerous 
other  contingencies." 

The  relation  of  attorney  and  draughtsman  no  doubt  gave  in  the 
case  before  us  the  opportunity  for  influence,  and  self-interest 
might  supply  a  motive  to  unduly  exert  it,  but  its  exercise  cannot 
be  presumed  in  aid  of  those  who  seek  to  overthrow  a  will  already 
established  by  the  judgment  of  a  competent  tribunal,  rendered  in 
proceedings  to  which  the  plaintiffs  were  themselves  parties,  nor 
in  the  absence  of  evidence,  warrant  a  presumption  that  the  inten- 
tion of  the  testator  was  improperly,  much  less  fraudulently  con- 
trolled.    Such  ind  ied  seems  to  have  been  the  theory  on  which  the 

action  was  brought,  for  the  complaint  not  only  alleges  the  confi- 
dential   relation    between    Ma-oii   and    the   testator,  but  avers  wcak- 

aese  and  inability  on  his  part,  ignorance  of  the  contents  of  the 
will,  and  advantage  taken  of  these  circumstances  by  the  attorney 
to  procur<   a  bequest   for  his  own  benefit.     In  view,  therefore,  of 

the    verdict    of    the    jury   and    the    findings  of   the  court,  we  niivlit 

dismiss  the  case.  They  have  not  only  declared  that  the  testator 
was  of  sound  and  disposing  mind,  competent  to  make  a  will  and 


208  UNDUE  INFLUENCE. — FUAUD. 

under  no  restraint  or  undue  influence,  but  that  before  execution 
the  will  was  read  and  its  provisions  understood  by  him,  and  also 
that  fraud  was  not  practiced  upon  the  testator  nor  upon  the  plain- 
tiffs, to  obtain  probate,  and  have  thus  taken  away  every  ground 
of  relief,  even  if  the  Supreme  Court  had  power  to  grant  it.  A 
somewhat  more  general  question  has,  however,  been  argued  for 
the  appellants.  The  learned  counsel  insists  that  "  the  burden  of 
proof  is  all  there  is  of  this  controversy,"  and  as  the  judge  charged 
the  jury  that  upon  all  the  questions  presented  to  them,  "  the  plain- 
tiffs held  the  affirmative,"  and  again,  that  "  the  burden  of  proof 
is  upon  the  plaintiffs  to  establish,  by  evidence,  every  allegation  of 
fraud,  and  in  the  absence  of  such  evidence,  the  issue  must  be  found 
in  favor  of  the  defendants,"  there  was  error.  Several  propositions 
were  thus  involved.  The  questions  submitted  to  the  jury  relate 
severally  to  the  condition  of  mind  of  the  testator,  influence  exerted 
upon  him,  whether  probate  was  obtained  by  fraud,  whether  Mrs. 
Post  learned  the  contents  of  the  will  within  a  given  time,  and 
whether  either,  and  if  either,  which  of  the  defendants  prevented 
her  from  so  doing.  Upon  some  of  these  there  could  be  no  doubt 
whatever  as  to  the  burden  of  proof.  The  plaintiff's  moving  to  set 
aside  the  will  and  its  probate  must  do  something  more  than  call 
the  defendants  into  court,  and  so  they  thought  at  the  trial.  For 
they  opened  the  case  to  the  jury,  and  upon  every  question  took 
the  affirmative,  giving  such  evidence  as  they  could.  Even  assum- 
ing, therefore,  that  the  exceptions  were  pointed  enough  to  call  the 
mind  of  the  judge  to  any  particular  error,  we  think  his  instruc- 
tions were  right.  But  if  otherwise,  it  would  not  follow  that  our 
decision  should  go  for  the  appellants.  Application  for  new  trials 
of  questions  submitted  by  a  court  of  equity  are  governed  by  dif- 
ferent principles  from  those  which  prevail  on  similar  applications 
in  a  court  of  law.  The  object  of  the  trial  is  attained  when  the 
court  is  satisfied  that  justice  has  been  done,  and  in  such  a  case 
a  new  trial  will  not  be  granted,  even  for  misdirection  to  the 
jury  (Head  v.  Head,  1  Turner  &  Russell  138),  unless  the  error  was 
vital  or  important.  (Yermilyea  v.  Palmer,  52  1ST.  Y.  471.)  There 
are  many  case>-  to  the  same  effect,  but  in  this  State  the  rule  is  now 
statutory,  and  any  error  in  the  ruling  or  direction  of  the  judge 
upon  the  trial  may,  in  the  discretion  of  the  court  which  reviews 
it,  be  disregarded,  if  it  "  is  of  opinion  that  substantial  justice  does 


ATTORNEY  AND  DRAUGHTSMAN  AS  LEGATEE.     209 

not  require  that  a  new  trial  should  be  granted."  (Code  of  Civil 
Procedure,  sec.  1003.)  Upon  this  point  neither  the  judge  at  Spe- 
cial Term  nor  the  judges  of  General  Term  have  entertained  a 
doubt.  Neither  can  we.  Upon  the  question  of  fraud  or  undue 
influence,  there  is  no  evidence.  The  plaintiff's  case  stands,  if  at 
all,  upon  the  single  fact  that  a  lawyer,  the  draughtsman  of  the 
will,  was  one  of  three  residuary  legatees,  and  thus  receives  a  ben- 
efit. The  proof  is  abundant  that  on  the  part  of  the  testator  there 
was  adequate  capacity,  testamentary  intention,  and  a  due  execution 
of  the  will,  with  full  knowledge  of  its  contents.  This  is  enough. 
The  record  furnishes  no  reason  for  defeating  the  plain  wishes  of 
the  testator.  Aside  from  these  considerations,  however,  it  is  ap- 
parent that  so  far  as  any  question  here  is  concerned,  the  will  is  to 
be  regarded  as  one  relating  to  personal  property  only,  and  we  are 
of  opinion  that  its  probate  by  the  surrogate  must  be  deemed  con- 
clusive. As  to  this  the  statute  is  explicit.  (2  R.  S.,  tit.  1,  part  2, 
chap.  6,  art.  2,  sec.  29,  p.  61  ;  Vanderpoel  v.  Van  Valkenburgh, 
6  X.  Y.  190;  In  the  Matter  of  Proving  the  Will  of  Kellum,  50 
Id.  298.) 

It  is,  however,  urged  as  ground  for  the  interference  of  a  court 
of  equity,  notwithstanding  the  probate  of  the  will,  that  the  exec- 
utors may,  as  to  the  gift  to  them,  be  charged  as  trustees  for  the 
next  of  kin,  if  that  gift  was  obtained  by  fraud,  actual  or  construct- 
ive. Although  the  foundation  for  this  contention  is  taken  away 
by  tin'  decision  of  the  other  points,  something  should  be  said  as  to 
the  proposition  itself.  Authority  for  it  is  not  gathered  from  the 
decisions  of  the  court-  of  tin's  State,  nor  are  we  informed  how  it 
can  stand  in  face 'of  the  statute  (supra),  which  makes  such  pro- 
bate conclusive.  The  whole,  and  each  part  of  the  will  was  before 
the  Bnrrogate,  and  allegations  attributing  any  portion  of  it  or  any 
of  its  provisions  to  fraudulent  practices,  were  then  competent. 
They  were  made  or  might  have  been  made,  and  in  either  event 
were  embraced  in  his  decision.  If  established,  the  will,  or  so  much 
of  it  as  was  affected  by  the  fraud,  would  have  been  rejected,  and 

the    property  now  claimed   would    have    found    its  way  by  force  oi 

the  statute  of  distributions  to  those  entitled  to  it.  We  are,  how- 
ever, referred  by  the  appellants'  counsel  to  cases  from  the  English 
curt-,  iii  aupporl  of  his  position.  We  think  they  are  insufficient. 
M-.-t  of  them  i  Marriol  v.  Miarriot,  I  Sir.  666;  Segrave  \.  Kirwan, 

1  1 


210  UNDUE  INFLUENCE. — FRAUD. 

1  Beatty  157 ;  Bnlkley  v.  Wilford,  2  Clark  &  Fin.  102  ;  Barnesly 
v.  Powel,  1  Ves.  Sen.  287)  are  cited  and  commented  on  in  Allen 
v.  McPherson  (1  House  of  Lords  Cases,  191),  where  after  probate 
of  a  will  and  codicils  in  the  Ecclesiastical  Court,  a  bill  was  filed  by 
one  R.  A.  in  Chancery,  stating  that  by  the  will  and  codicils  the 
testator  gave  him  large  bequests  which  he  revoked  by  the  final 
codicil,  and  alleged  that  the  testator  had  executed  the  last  codicil 
when  his  faculties  were  impaired  by  age  and  disease,  and  under 
undue  influence  of  the  residuary  legatee,  and  false  representations 
respecting  R.  A.'s  character,  and  moreover  that  he  had  not  been 
permitted  in  the  Ecclesiastical  Court  to  take  any  objections  to  that 
codicil,  except  such  as  affected  the  validity  of  the  whole  instru- 
ment, and  prayed  that  the  executor  or  residuary  legatee  might 
be  declared  trustees  or  trustee  to  the  amount  of  the  revoked 
bequest.  Upon  demurrer,  the  court,  with  these  and  other  cases 
before  it,  held  that  the  Court  of  Chancery  had  no  jurisdiction  in 
the  matter,  and  this  was  upon  the  ground  that  the  Ecclesiastical 
Court  had  jurisdiction  and  might  have  refused  probate,  citing  va- 
rious instances  where  those  courts  had  so  applied  the  doctrine,  and 
as  to  cases  in  which  a  court  of  equity  had  declared  a  legatee  or  ex- 
ecutor to  be  a  trustee  for  other  persons,  show  that  they  presented 
questions  of  construction,  or  were  cases  in  which  the  party  had 
been  named  a  trustee,  or  had  engaged  to  take  as  such,  or  in  which 
the  Court  of  Probate  could  afford  no  adequate  remedy,  and  were 
not  cases  of  fraud.  This  decision  was  made  in  1847,  and  in  a  much 
later  case  (Meluish  v.  Milton,  L.  R.  3  Ch.  Div.  27,  decided  in 
1876)  it  was  followed  by  the  Court  of  Chancery,  where  the  heir- 
at-law  and  next  of  kin  sought  to  have  the  executrix,  who  was  also 
legatee,  declared  a  trustee  of  the  property  for  him.  The  relief  sought 
was  denied  upon  the  ground  that  as  the  Court  of  Chancery  could 
not  set  aside  probate  of  a  will  of  personal  property,  it  could  not 
make  a  legatee  trustee  for  another  person,  on  the  ground  of  fraud, 
as  that  would  be  doing  indirectly  what  the  law  will  not  allow  to 
be  done  directly,  and  the  court  held  that  the  exclusive  jurisdic- 
tion of  the  Court  of  Probate  in  such  cases  is  supported  by  con- 
venience as  well  as  by  authority.  So  there  are  English  cases  where 
as  the  law  stood,  if  a  testator  did  not  dispose  of  his  residuary  es- 
tate, the  executors  took  a  beneficial  interest  in  it  unless  a  contrary 
intention  was  expressed,  and  a  court  of  equity  was  astute  to  find  a 


EVIDENCE   OF  INSANITY   AND   UNDUE  INFLUENCE.     211 

trust  for  the  heir  or  next  of  kin.  Segrave  v.  Kirwan  (1  Beatty 
157),  so  largely  relied  on  by  the  appellants,  was  one  of  those  cases. 
It  was  not  there  the  intention  of  the  testator  to  give  the  draughts- 
man anything  more  than  the  office  of  executor,  but  no  residuary 
legatee  was  named,  and  he  insisted  that  he  was  entitled  to  the  res- 
idue  of  the  personal  estate,  and  so  the  law  was.  But  it  appeared 
that  at  the  time  he  drew  the  will,  he  was  not — nor  was  the  testa- 
tor— aware  that  under  the  dispositions  and  omissions  of  the  will, 
he  would  be  entitled  to  the  residue  ;  and  the  court  charged  the 
attorney  as  trustee  for  the  next  of  kin,  upon  the  ground  that  he 
should  be  deemed  to  have  known  the  law,  and  having  failed  to  in- 
struct the  testator  in  regard  to  it,  should  reap  no  advantage  from 
his  actual  ignorance.  But  even  in  England  the  necessity  for  this 
interference  was  removed  by  statute  (11  Geo.  4,  and  1  Will.  4, 
chap.  10;  Statutes  of  Great  Britain  and  Ireland,  vol.  12,  part  1, 
p.  114).  and  we  are  cited  to  no  case  in  this  State  where  a  court  of 
equity  has  exercised  such  jurisdiction  as  the  plaintiffs  now  invoke. 

Upon  all  grounds,  therefore,  we  think  the  judgment  of  the  Su- 
preme Court  should  be  affirmed,  with  costs. 

All  concur. 

Judgment  affirmed, 
evidence  on  issues  of  insanity,  undue  influence,  and  fraud. 

In  addition  to  the  statements  already  made  in  the  foregoing 
pages  on  the  subject  of  evidence  on  these  topics,  it  will  be  conven- 
ient here  to  add  a  few  further  important  principles. 

On  all  the  topics  above  named,  the  condition  of  mind  of  the  tes- 
tator  may  be,  and  on  at  least  one  of  them  always  is,  a  fact  of  im- 
portance. So  far  as  concerns  the  issue  of  mental  incompetency, 
the  fact  of  testator's  mental  condition  is  the  very  fact  in  issue.  On 
the  issue  of  undue  influence  the  testator's  mental  condition  is  a 
subsidiary  fact  bearing  on  the  question  of  his  susceptibility  to 
pre—iire  or  crowding,  and  goes  to  makeup  the  atmo&phen  sur- 
rounding the  transaction,  and  assists  in  determining  whether  the 

Other  facts  shown  did  succeed  in  overpowering  his  will  without 
convincing  his  judgment.  On  the  issue  of  fraud,  it  may  some- 
times have  a  similar  bearing.  On  all  these  issues,  consequently, 
any  facts  which,  whether  separately  or  in  the  aggregate,  either 
show   or    logically  tend    to    show   his   mental    condition    at    the 


212  UNDUE  INFLUENCE. — FRAUD. 

time  of  execution,  may,  if  otherwise  competent  in  the  particular 
case,  be  offered  in  evidence,  either  to  support  or  to  discredit  the 
will.  Among  these  facts,  as  we  have  already  seen  (Waterman  v. 
Whitney,  and  other  cases,  given  ante),  is  the  fact  that  testator  made 
certain  declarations,  either  before,1  at,  or  after  execution,  tending 
to  indicate  the  mental  condition,  at  the  time  of  execution,  of  the  per- 
son making  them.  They  are  not  admissible  as  evidence  of  the  facts 
which  they  purport  to  allege,  but  merely  as  evidence  of  the  state  of 
testator's  mind.  If,  however,  they  were  made  at  the  time  of  execu- 
tion, they  are  admissible,  if  otherwise  competent,  as  part  of  the 
res  gestae,  as  to  show  the  intent  with  which  the  act  of  execution 
was  performed.2 

'  As  to  other  evidence,  its  admissibility  varies  somewhat  with  the 
issue  involved.  Where  the  issue  is  mental  incompetency,  any  di- 
rect evidence  of  facts  relating  to  testator's  mental  condition,  at  the 
time  of  execution,  is  admissible.  And  although  it  must  relate  to, 
or  logically  bear  upon,  that  particular  time,  it  may,  like  evidence 
of  testator's  declarations,  deal  with  facts  occurring  before,  or  at,  or 
after  execution,  and  even  long  before  or  after,  so  long  as  it  has  any 
reasonable  tendency  to  throw  light  upon  testator's  mental  condi- 
tion when  he  executed  the  will.3  Thus,  it  is  admissible  to  show 
the  letters  written  by  testator,  or  the  fact  that  he  kept  his  own 
books  of  account,  drew  checks,  made  deposits,  engaged  in  business 
transactions,  managed  his  own  business,  made  purchases,  held 
responsible  positions  calling  for  the  exercise  of  care  and  judgment, 
or,  on  the  other  hand,  was  under  guardianship,  or  was  not  trusted 
with  money,  and  so  on.  Many  illustrations  of  the  sort  of  evi- 
dence that  may  be  adduced  on  this  issue,  both  to  prove  and  to 
disprove  mental  competency  at  the  date  of  execution,  will  be 
found  in  the  foregoing  cases. 

On  the  issue  of  undue  influence,  all  the  foregoing  facts  may  be 
shown  for  the  purpose  of  proving  testator's  mental  condition  as  a 
subsidiary  element  in  the  general  charge  of  undue  influence. 
From  the  nature  of  the  issue,  evidence  is  also  admissible  to  show 
his  relations  with  the  beneficiaries  under  the  will,4  and  with  those 

1  Hammond  v.  Dike,  42  Minn.  273 ;  Conway  v.  Vizzard  (Ind.),  23  N.  E.  771. 

2  Chaney  v.  Home  etc.  Society,  28  111.  App.  621. 

3  Steadman  v.  Steadman  (Penn.),  14  Atl.  Rep.  406. 

4  Carpenter  v.  Hatch,  64  N.  H.  573. 


EVIDENCE   OF  INSANITY   AND   UNDUE   INFLUENCE.     273 

who  might  naturally  be  expected  to  appear  as  beneficiaries,1  his 
affections  and  hatreds,  his  likes  and  dislikes,  as  bearing  on  the 
question  of  the  reasonable  likelihood  of  a  person  with  the  feelings 
and  opinions  thus  shown,  making  such  a  will  as  that  propounded. 
So  also  the  acts  and  demeanor,  in  so  far  as  they  bear  on  the  issue, 
of  the  persons  charged  with  exercising  the  undue  influence,  may 
be  shown,  and  their  relations  to  testator,  their  proper  claims  on 
him,  the  methods  adopted,  if  any,  to  influence  or  crowd  or  coerce 
him,  and  the  opportunities  they  had  for  doing  so.  Under  this 
head,  former  wills  executed  by  testator,  and  the  continuance  or 
change  of  the  conditions  which  led  him  to  make  the  provisions 
contained  in  them,  may  be  offered.3  In  short,  direct  evidence  of 
all  facts  may  be  given,  which  has  a  legitimate  and  sensible  bearing 
on  these  two  questions, — namely,  whether  efforts  were  made  to 
override  testator's  free  will,  and  whether  they  succeeded.  Of 
these  facts  numerous  illustrations  may  also  be  found  in  the  forego- 
ing cases. 

On  the  issue  of  fraud,  such  facts  may,  or  may  not  have  a  legiti- 
mate bearing,  according  to  the  nature  of  the  particular  charge,  but 
if  they  do  have,  they  are  admissible,  together  with  other  facts  go- 
ing to  show  or  make  out  the  charge  of  fraud  on  the  general  prin- 
ciples of  evidence  applicable  to  that  issue  under  any  circumstances 
and  in  any  kind  of  suit. 

1  Btaser  v.  IIo.<ran,  120  Ind.  207. 

1  Colhoun  v.  Jones,  2  Kedf.  34  ;  Tyler  v.  Gardiner,  given  ante. 


CHAPTER  III. 

EXECUTION. 

I. — Signing  by  the  testator. 

II. — Making  or  acknowledgment  of  signature  before  wit- 
nesses. 
III. — Declaration  of  the  will  to  witnesses. 
IV". — Request  to  witnesses  to  sign. 
'V. — Attestation  and  signature  by  witnesses. 

Although  the  statutes  of  England  and  our  States  vary  a  good 
deal  among  themselves  in  the  details  of  their  requirements  for  due 
execution,  there  are  certain  features,  some  of  which  are  common 
to  most  of  them,  which  may  here  be  stated.  Special  care,  how- 
ever, is  needed  to  notice  the  bearing  upon  any  given  decision  of 
the  exact  requirements  and  phraseology  of  the  statute  whose 
construction  is  involved.  And  no  attempt  will  of  course  here  be 
made  to  discuss  the  special  and  peculiar  provisions  of  the  varying 
statutes  of  the  several  States. 

It  may  in  general  be  said  that  due  execution  usually  requires 
some  or  all  of  the  following  acts,  according  to  the  terms  of  the 
controlling  statute : 

1.  Signing  by  the  testator. 

2.  Making  or  acknowledgment  of  signature  before  witnesses. 

3.  Declaration  of  the  will  to  witnesses. 

4.  Request  to  witnesses  to  sign. 

5.  Attestation  and  signature  by  witnesses.1 

These  requirements  we  will  examine  in  order. 

1  The  order  in  which  the  several  steps  are  taken  is  generally  immaterial. 
Jackson  v.  Jackson,  39  N.  Y.  153  (159).  Thus  in  Matter  of  Phillips,  98  N.  Y. 
267,  where  the  testator  declared  the  instrument  to  be  his  last  will  and  testa- 
ment, after  the  witness  had  begun,  and  before  he  had  finished,  writing  his 
name,  it  was  held  a  sufficient  declaration.  So  where  testatrix  declared  the  in- 
strument to  be  her  will,  while  signing  her  name,  and  made  her  request  to  the 
(214) 


SIGNING   BY   THE   TESTATOR.  215 

I.  SIGNING  BY  THE  TESTATOR. 

Tho  various  methods  of  signing  wills  may  be  classified  in  two 
groups. 

In  one  group  of  cases  the  testator,  by  h  is  own  physical  exertion, 
fixes  upon  the  instrument  some  visible  impression  intending  it  to 
constitute  his  signature.  It  is  to  be  noticed  that  this  statement 
does  not  necessarily  coufine  him  to  the  use  of  any  particular  ma- 
terials, or  of  any  particular  kind  of  marks.  But  whatever  the 
signature  may  consist  in,  it  must  have  been  intended  by  testator, 
at  the  time,  to  be,  or  stand  for,  his  signature  to  the  instrument. 
And  the  use  of  materials  peculiarly  liable  to  be  destroyed  or  de- 
faced may  raise  a  presumption,  and  even  a  conclusive  presumption, 
that  no  formal  testamentary  act  could  have  been  intended. 

Illustrations, 
(a).  A.  signed  his  will  by  merely  marking  a  cross.1 
(I/).  A  testator  wrote  at  the  end  of  the  will  his  initials.2 
(<?).  Another  testator  impressed  upon  wax,  affixed  to  the  instru- 
ment, his  initials  engraved  on  a  seal.3 

('/).  C.  signed  her  will  by  her  first  name — Catherine — and  noth- 
ing more.4 

In  all  the  foregi  ring  cases  the  "  signing  "  was  held  to  be  sufficient. 

witnesses  before  she  signed  herself,  though  they  in  fact  signed  after  her. 
Williams'  Will,  15  N".  Y.  Supp.  8*28.  Substantial  compliance  is  all  that  is  re- 
quired. This  principle  has  been  carried  so  far  that  in  New  Jersey  it  has  been 
8did,  in  Mundy  v.  Mimdy,  15  X.  J.  Eq.  290  (294),  that  the  fact  that  a  witi 
signed  before  instead  of  after  testator  would  he  immaterial,  citing  as  authority 
Vaughan  v.  Burford,  3  Bradf.  78:  "The;  particular  order  of  the  several 
requisites  to  the  valid  execution  of  a  testament  is  not  at  all  material."  Hut  the 
New  York  case  thus  cited  is  erroneous.  The  witnesses  must  sign  after  the 
testator  has  Bigned.  in  New  York.  Jackson  v.  Jackson,  39  N.  Y.  153.  For 
the  fad  that  testator  has  signed  is  one  of  the  thingswhich  the  witness  is  to 
attest.  Pawtuckel  v.  Ballou,  15  R.  I.  58;  Simmons  v.  Leonard  (Term.),  18  S. 
W.  Rep.  280. 

Nickeraon  v.  Buck,  12  Cush,  382;  Robinson  v.  Brewster  (111.),  :i<>  N.  E.  Hep. 
688 

Re  Savory,  1."(  Jurist  1042. 
'Goods  of  Emerson,  L  R  9  [r.  443;  Bee  also  Jenkins  v.  Gaisford,  8  Sw.  & 

Tr    98.      A  mere  Sealing,  not  intended  for  a  signature,  will  not,  however,  con- 
st it  me  a  signing.    Goods  of  Emerson,  L   R.  9  Ir.  448. 
•  Knox's  Estate,  181  Penn.  St.  220. 


216  EXECUTION. 

(e).  Patrick  J.  O'Neill,  the  testator,  began  to  sign,  and  wrote  as 
far  as  "  Pat " — and  then  desisted,  not  as  having  completed  all  he 
set  out  to  write,  but  because  too  weak  to  go  on.  It  was  held  that 
this  was  not  sufficient.  What  was  written  was  not  intended  as  a 
complete  signature.1 

{f).  Testator  "  made  his  mark,"  and  a  witness,  Miller,  wrote 
around  it  the  testator's  name,  thus  "  Moses  W.  S.  Jackson,  his 
mark."  It  was  of  no  consequence  whether  this  writing  preceded 
or  followed  the  making  of  the  mark.  The  mark  itself  is  the  sign- 
ing called  for  by  the  statute.  The  name  written  around  it  is 
merely  a  convenient  memorandum  to  designate  the  mark.2 

(g).  David  Long,  the  testator,  signed  his  will  with  a  mark,  about 
which  the.  draftsman  wrote,  by  mistake,  Jacob  Long.  The  mark 
being  itself  the  signature,  the  due  execution  was  not  vitiated  be- 
cause some  one  else  wrote  a  wrong  name  against  it.3 

(h).  Testator's  hand,  when  he  signed  his  will,  was  guided  by  that 
of  some  one  else.     This  was  a  signing  by  the  testator  himself.4 

The  foregoing  instances  illustrate  cases  where  the  signature  was 
made  by  testator  himself.  But  there  is  a  second  class  of  cases 
where  this  is  not  done.  Our  statutes  of  wills,  like  the  English 
statute,  usually  permit  the  signature  to  be  made  by  another  person 
at  testator's  request  and  in  his  presence.6  But  where  the  statute 
merely  provides  that  the  will  must  be  signed  by  testator,  omitting 
the  alternative  provision,  here  it  has  been  held  in  New  Jersey  that 
signature  by  another  for  him  will  not  suffice.8 


1  Knapp  v.  Reilly,  3  Dem.  (N.  Y.)  427. 

2  Jackson  v.  Jackson,  39  N.  Y.  153. 

3  Long;  v.  Zook,  13  Penn.  St.  400.  To  the  same  point,  Goods  of  Clarke,  1 
Sw.  &  Tr.  22. 

4  Stevens  v.  Vancleve,  4  Wash.  C.  C.  262. 

5  In  MiDn.  the  statute  requiring  that  a  will  may  be  signed  by  another  for 
testator,  "by  his  express  direction,"  excludes  a  mere  passive  assent  and  calls 
for  a  clear  active  direction  either  by  words,  gestures,  motions,  looks  or  signs, 
of  some  sort.     Waite  v.  Frisbie,  45  Minn.  361. 

6  Re  McElwaine,  3  C.  E.  Green  499;  Fritz  v.  Turner,  46  N.  J.  Eq.  515. 


testator's  signature.— general  discussion.      217 

TESTATOR'S  SIGNATURE.— GENERAL  DISCUSSION. 
Knox's  Estate. 

Pennsylvania  Supreme  Court,  1890. 
(131  Perm.  St.  320.) 

Appeal  to  the  Supreme  Court  from  the  decree  of  the  Orphans' 
Court  of  Alleghany  County,  affirming  the  decision  of  the  register 
of  wills,  admitting  to  probate  as  a  will,  an  instrument,  the  signa- 
ture to  which  was  merely  the  first  name,  "  Harriet."  One  of  the 
grounds  of  the  appeal  was  that  this  did  not  constitute  a  "  signa- 
ture "  under  the  statute. 

Opinion,  Mr.  Justice  Mitchell.  [After  considering  other  ques- 
tions raised  on  the  appeal.] 

It  being  undisputed  that  the  paper  is  in  the  handwriting  of  the 
decedent,  and  being  testamentary  in  its  character,  the  only  ques- 
tion left '  upon  its  validity  as  a  will  is  the  sufficiency  of  its  execu- 
tion by  the  signature  "  Harriet." 

The  paper  is  proved  to  have  been  written  after  the  passage  of 
the  act  of  June  3,  1887,  P.  L.  332,  and  the  fact  that  the  decedent 
was  a  married  woman  is  therefore  unimportant.  That  act  re- 
pealed the  requirement  that  a  married  woman's  will  should  be  exe- 
cuted in  the  presence  of  two  witnesses,  neither  of  whom  should  be 
her  husband,  and  put  her,  in  respect  to  signature  by  herself,  upon 
the  same  footing  as  men  and  unmarried  women.  No  greater 
effect  can  be  attributed  to  the  statute.  It  certainly  was  not  in- 
truded to  authorize  a  married  woman  to  execute  a  will  any  more 
loosely  than  other  persons.  We  are  therefore  remitted  to  the 
general  question  whether  a  signature  by  the  first  name  only  may 
be  a  valid  signing  of  a  will  under  the  act  of  1833  and  its  supple- 
ments. • 

The  condition  of  the  law  before  the  passage  of  the  wills  act  of 
1833  18  well  known.  By  the  English  statute  of  frauds,  all  wills  as 
to  land  wen-  required  to  be  ill  writing,  signed  by  the  testator. 
Under  this  act  it  was  held  that  the  signature  of  the  testator  in  any 

part  of  the  instrumenl  was  sufficient :  1  Redf .  on  Wills,  c.  <">,  see. 
18,  pi.  '.♦,  an. I  cases  there  cited.    The  same  construction  was  given 

1  The  law  of  Pennsylvania  concerning  execution  of  holographic  wills  is,  as 
in  some  other  States,  peculiar,  and  unlike  the  usual  laws. 


218  EXECUTION. 

to  the  law  in  Pennsylvania,  and  under  the  act  of  1705,  1  Sm.  L. 
33,  which  required  wills  of  land  to  be  in  writing  and  proved  by 
two  or  more  credible  witnesses,  etc.,  it  was  even  held  that  a  writ- 
ing in  the  hand  of  another,  not  signed  by  the  testator  at  all,  might 
be  a  good  will :  Rohrer  v.  Stehman,  1  W.  463.  In  this  state  of 
the  law  the  act  of  1833  was  passed.  It  was  founded  on  the  Eng- 
lish statute  of  frauds,  29  Car.  II.,  the  phraseology  of  which  it 
follows  closely,  but  with  the  important  addition  that  the  will  shall 
be  signed  "  at  the  end  thereof."  In  making  this  change,  it  is 
undoubtedly  true,  as  suggested  by  Strong,  J.,  in  Vernon  v.  Kirk, 
30  Pa.  222,  that  the  legislature  ''  looked  less  to  the  mode  of  the 
signature  than  to  its  placed  Accordingly,  the  statute  makes  no 
definition  of  a  signature,  or  of  the  word,  signed.  "  It  was  only 
by  judicial  construction  that  ....  (the  statute)  was  made  to 
require  ....  the  testator's  signature  by  his  name  ":  Strong,  J., 
Vernon  v.  Kirk ;  and  that  judicial  construction  which  held  that 
a  mark  was  not  a  valid  signature  :  Asay  v.  Hoover,  5  Pa.  21  ; 
Grabill  v.  Barr,  5  Pa.  441,  decided  in  1846,  was  changed,  it  may 
be  noted,  by  the  legislature  as  soon  as  their  attention  was  directed 
to  it :  Act  January  27,  1848,  P.  L.  16. 

The  purposes  of  the  act  of  1833  were  accuracy  in  the  transmis- 
sion of  the  testator's  wishes,  the  authentication  of  the  instrument 
transmitting  them,  the  identification  of  the  testator,  and  certainty 
as  to  his  completed  testamentary  purpose.  The  first  was  attained 
by  requiring  writing  instead  of  mere»  memory  of  witnesses,  the 
second  and  third  by  the  signature  of  testator,  and  the  last  by 
placing  the  signature  at  the  end  of  the  instrument.  The  first  two 
requirements  were  derived  from  the  English  statute ;  the  third 
was  new  (since  followed  by  the  act  of  1  Vict.,  c.  26),  and  was  the 
result  of  experience  of  the  dangers  of  having  mere  memorandum 
or  incomplete  directions  taken  for  the  expression  of  final  inten- 
tion :  Baker's  App.,  107  Pa.  381 ;  Vernon  v.  Kirk,  30  Pa.  223. 
These  being  the  purposes  of  the  act,  and  the  legislature  not  having 
concerned  itself  with  what  should  be  deemed  a  signing,  we  must 
look  dehors  the  statute  for  a  definition.  As  already  said,  the  act 
is  founded  on  the  statute  of  frauds,  29  Car.  II.  Under  that  act 
it  has  been  held  that  the  signing  may  be  by  a  mark,  or  by  initials 
only,  or  by  a  fictitious  or  assumed  name,  or  by  a  name  different 
from  that  by  which  the  testator  is  designated  in  the  body  of  the 


TESTATOR'S   SIGNATURE. — GENERAL  DISCUSSION.        219 

will :  1  Jarman  on  Wills,  78 ;  1  Redf.  on  "Wills,  c.  6,  sec.  18,  and 
cases  there  cited.  In  this  State,  as  already  seen,  it  was  held,  on  a 
narrow  construction  of  the  act  of  1833,  that  a  mark  was  not  a 
signing ;  but  on  the  other  points,  so  far  as  they  have  arisen,  our 
decisions  have  been  in  harmony  with  those  of  the  English  courts. 
Thus,  in  Long  v.  Zook,  13  Pa.  400,  the  will  of  David  Long  was 
held  to  be  validly  executed  by  his  mark,  although  the  mark  was 
put  to  the  name  of  Jacob  Long.  In  Vernon  v.  Kirk,  30  Pa.  218, 
"  Ezekiel  Norman,  for  Rachel  Doherty,  at  her  request,"  was  held 
to  be  a  valid  signing  under  the  act.  And  in  Main  v.  Ryder,  8-1 
Pa.  217,  it  may  be  noted  that  a  mark  was  held  to  be  a  good  signa- 
ture (subsequent  to  the  act  of  1848),  though  put  to  a  name  which 
was  not  the  testator's  real  or  at  least  his  original  name,  though  it 
was  one  by  which  he  had  been  known  for  some  years  in  his  own 
neighborhood.  No  question  was  raised  against  the  will  on  this 
point. 

The  precise  case  of  a  signature  by  the  first  name  only,  does  not 
appear  to  have  arisen  either  in  England  or  in  the  United  States  ; 
but  the  principles  on  which  the  decisions  already  referred  to  were 
based,  especially  those  in  regard  to  signing  by  initials  only,  are 
equally  applicable  to  the  present  case,  and  additional  force  is  given 
to  them  by  the  decisions  as  to  what  constitutes  a  binding  signature 
t< » a  contract  under  the  same  or  analogous  statutes.  Browne  on  the 
Statutes  of  Frauds,  see.  3(12,  states  the  rule  thus:  "  In  cases  where 
the  initials  only  of  the  party  are  signed,  it  is  quite  clear  that,  with 
the  aid  of  parol  evidence  which  is  admitted  to  apply  to  them,  the 
signature  ie  to  be  held  valid."  And  see  Palmer  v.  Stephens,  1 
Den.  478;  Sanborn  v.  Flagler,  9  Allen  474;  Weston  v.  Myers, 
33  III.  432;  Salmon  Falls  Co.  v.  Goddard,  14  How.  !!•'.:  Chi- 
chester v.  Cobb,  14  Law  T.,  N.  S.  433.  Though,  therefore,  we 
find  do  precise  precedent,  yel  the  analogies  are  all  favorable,  rather 
than  otherwise,  to  the  sufficiency  of  a  signing  by  first  name  only,  if 
it  meet-  the  other  requirements  of  the  act.  These  are  matters 
depending  on  circumstances  which  will  be  considered  further  on. 
hooking  beyond  the  decisions  to  the  general  use  of  language,  what 
i-  understood  by  signing,  and  signature  %     Webster  defines  to  sign 

■■  to  affix  r  signature  to  ;  to  ratify  by  hand  or  seal  ;  to  subscribe 
in  one's  own  handwriting";  and  signature  a  "  a  sign,  stamp,  or 
mark  Impressed;  ....  especially  the  name  of  any  person  writ- 


220  EXECUTION. 

ten  with  his  own  hand,  employed  to  signify  that  the  writing  which 
precedes  accords  with  his  wishes  or  intentions;  a  sign  manual." 
All  the  definitions  include  a  mark,  and  no  dictionary  limits  a 
signature  to  a  written  name.  There  can  be  no  doubt  that  histor- 
ically,  and  down  to  very  modern  times,  the  ordinary  signature  was 
the  mark  of  a  cross ;  and  there  is  perhaps  as  little  question  that 
in  the  general  diffusion  of  education  at  the  present  day,  the  ordi- 
nary use  of  the  word  implies  the  written  name.  But  this  implica- 
tion is  not  even  yet  necessary  and  universal.  The  man  who  can- 
not write  is  now  happily  an  exception  in  our  commonwealth,  but 
he  has  not  yet  entirely  disappeared,  and  in  popular  language  he  is 
still  said  to  "  sign,"  though  he  makes  only  his  mark.  Thus,  in 
Asay  v.  Hoover,  5  Pa.  26,  the  witness  says :  "  The  name  was 
written  after  the  will  was  read  to  her,  and  after  she  had  signed  it. 
....  She  was  reclining  in  bed  when  she  signed  it,"  although  the 
signature  the  witness  was  testifying  to  was  only  a  mark.  But, 
even  in  the  now  usual  acceptation  of  a  Written  name,  signature 
still  does  not  imply  the  whole  name.  Custom  controls  the  rule  of 
names,  and  so  it  does  the  rule  of  signatures.  The  title  by  which 
a  man  calls  himself  and  is  known  in  the  community  is  his  name, 
as  in  Main  v.  Kyder,  supra,  whether  it  be  the  one  he  inherited  or 
had  originally  given  him  or  not.  So  the  form  which  a  man  cusr 
tomarily  uses  to  identify  and  bind  himself  in  writing  is  his  signa- 
ture, whatever  shape  he  may  choose  to  give  it.  There  is  no 
requirement  that  it  shall  be  legible,  though  legibility  is  one  of  the 
prime  objects  of  writing.  It  is  sufficient  if  it  be  such  as  he  usually 
signs,  and  the  signatures  of  neither  Rufus  Choate  nor  General 
Spinner  could  be  rejected,  though  no  man,  unaided,  could  discover 
what  the  ragged  marks  made  by  either  of  those  two  eminent  per- 
sonages were  intended  to  represent.  Nor  is  there  any  fixed  require- 
ment how  much  of  the  full  name  shall  be  written.  Custom  varies 
with  time  and  place,  and  habit  with  the  whim  of  the  individual. 
^Sovereigns  write  only  their  first  names,  and  the  sovereign  of  Spain, 
more  royally  still,  signs  his  decrees  only,  "  I,  the  King,"  (Yo  el 
Rey).  English  peers  now  sign  their  titles  only,  though  they  be 
geographical  names,  like  Devon  or  Stafford,  as  broad  as  a  county. 
The  great  Bacon  wrote  his  name  Fr.  Verulam,  and  the  ordinary 
signature  of  the  poet-philosopher  of  fishermen  was  Iz  :  Wa : .  In 
the  fifty-six  signatures  to  the  most  solemn  instrument  of  modern 


testator's  signature.— general  discussion.      221 

times,  the  Declaration  of  Independence,  we  find  every  variety 
from  Th.  Jefferson  to  the  unmistakably  identified  Charles  Carroll 
of  Carrollton.  In  the  present  day,  it  is  not  uncommon  for  busi- 
ness men  to  have  a  signature  for  checks  and  banking  purposes 
somewhat  different  from  that  used  in  their  ordinary  busiuess,  and, 
in  familiar  correspondence,  signature  by  initials,  or  nickname,  or 
diminutive,  is  probably  the  general  practice. 

What,  therefore,  shall  constitute  a  sufficient  signature  must 
depend  largely  on  the  custom  of  the  time  and  place,  the  habit  of 
the  individual,  and  the  circumstances  of  each  particular  case.  As 
already  seen,  the  English  and  some  American  cases  hold  that  a 
signature  by  initials  only,  or  otherwise  informal  and  short  of  the 
full  name,  may  be  a  valid  execution  of  a  will  or  a  contract,  if  the 
intent  to  execute  is  apparent.  To  this  requirement  our  statute 
adds  that  the  signature  must  be  at  the  end,  as  evidence  that  the 
intent  is  present,  actual  and  completed.  On  this  point  of  the  com- 
pleted act,  the  use  of  the  ordinary  form  of  signature  is  persuasive 
evidence,  and  the  absence  of  it  may  be  of  weight  in  the  other 
scale.  As  well  suggested  by  the  learned  judge  below,  if  a  will 
drawn  with  formality,  or  in  terms  that  indicate  the  aid  of  counsel, 
or  the  intent  to  comply  with  all  the  forms  of  law,  be  signed  with 
initials  or  first  name  only,  doubt  would  certainly  be  raised  as  to 
the  completed  purpose  of  the  testator  to  execute  it,  and  if  then  it 
appeared  that  his  habit  was  to  sign  his  name  in  full,  the  doubt 
might  become  certainty  ;  while,  on  the  other  hand,  if  it  were  shown 
that  he  usually,  or  even  frequently,  signed  business  or  other 
important  papers  in  the  same  way,  the  doubt  might  be  dissipated. 
Aja  in  all  cases  where  the  intent  is  the  test,  there  can  be  no  hard 
and  fast  Legal  rule  as  to  form.  The  statute  requires  that  the  signa- 
ture Bhall  be  at  the  end,  and  that  requirement  must  be  met  without 
regard  to  intention,  but  what  shall  constitute  a  signature  must  be 
determined  in  each  case  by  the  circumstances. 

Tested  by  these  views,  the  will  in  the  present  case  appears  to 
have  Keen  well  executed.  Of  the  1 1,1  n<  I  writ  i  og  am  I  of  the  identity 
of  the  testatrix  there  is  no  question,  and  her  completed  intent  to 
execute  the  paper,  as  the  expression  of  her  testamentary  wishes,  is 
attested  at  the  end  of  it  by  a  signal  lire  admitted  to  be  made  by  her, 

and   shown    to    be    in    the    form    whieli    slie   habitually  used.      The 

writing  has  not  the  usual  formalities  of  a   will,  but  is  in  form  a 


2±2  EXECUTION. 

letter,  addressed  to  no  one  by  name,  but  clearly  intended  for  her 
mother,  or  such  of  her  family  as  should  assume  control  of  her  prop- 
erty after  her  death  ;  and  the  form  of  the  instrument  might  well 
account  for  the  signature  she  was  accustomed  to  use,  were  it  not 
still  more  clearly  explained  by  the  unfortunate  differences  with  her 
husband,  and  her  repugnance  to  using  his  name,  as  shown  by  her 
avoidance  of  it  in  her  correspondence,  and  her  direction  not  to  put 
it  on  her  tombstone.  On  the  evidence,  it  is  clear  that  the  testatrix 
intended  this  as  a  complete  execution  of  the  instrument,  and  we 
find  nothing  in  the  law  to  defeat  its  validity  for  that  purpose. 
Judgment  affirmed. 

SIGNATURE   BY    ENGRAVED    STAMP. 

Jenkins  v.  Gaisford  and  Thring. 
In  the  Goods  of  John  Jenkins  (deceased). 

English  Court  of  Probate,  1863. 
(3  Sw.  &  Tr.  93.) 

Probate  of  will  and  two  codicils. 

Henry  Atkins  deposed  that  he  was  testator's  amanuensis,  and 
often  exployed  a  stamp  bearing  a  fac-simile  of  testator's  signature, 
to  sign  testator's  letters,  as  testator  had  had  difficulty  in  writing ; 
that  at  testator's  request  he  had  thus  stamped  the  name  on  each  of 
the  two  codicils  and  thereupon  testator  laid  his  hand  on  the  paper 
and  acknowledged  the  signature. 

Probate  refused  on  motion.  After  special  declaration,  and  cita- 
tion to  next  of  kin,  the  question  of  the  sufficiency  of  the  signature 
was  argued  ex  parte  by  Dr.  Spinks. 

Sir  C.  Cresswell. — I  am  of  opinion  that  the  codicils  were  duly 
executed  so  as  to  comply  with  the  1  Vict.,  c.  26,  s.  9.  It  has  been 
decided  that  a  testator  sufficiently  signs  by  making  his  mark,  and 
I  think  it  was  rightly  contended  that  the  word  "  signed  "  in  that 
section  must  have  the  same  meaning  whether  the  signature  is  made 
by  the  testator  himself,  or  by  some  other  person  in  his  presence  or 
by  his  direction,  and  therefore  a  mark  made  by  some  other  person 
under  such  circumstances  must  suffice.  Now,  whether  the  mark 
is  made  by  a  pen  or  by  some  other  instrument  cannot  make  any 
difference,  neither  can  it  in  reason  make  a  difference  that  a  fac- 
simile of  the  whole  name  was  impressed  on  the  will  instead  of  a 


SIGNED   BY   MARK.— WRONG   NAME.  223 

mere  mark  or  X.  The  mark  made  by  the  instrument  or  stamp 
used  was  intended  to  stand  for  and  represent  the  signature  of  the 
testator.  In  the  case  where  it  was  held  that  sealing  was  not  signing, 
the  seals  were  not  affixed  by  way  of  a  signature. 

EXECUTION. -SIGNED  BY  MARK.— WRONG  NAME. 

In  the  Goods  of  Susanna  Clarke  (deceased),  on  Motion. 

English  Court  of  Probate,  1858. 
(1  Sw.  &  Tr.  22.) 

The  testatrix  executed  a  will  in  1844,  by  mark.  Against  her 
mark  the  name  Susanna  Barrell  (her  maiden  name)  was  written 
instead  of  Susanna  Clarke,  her  real  name,  and  the  one  by  which 
she  was  described  in  the  commencement  of  the  will  and  in  the 
testimonium  clause. 

Shortly  before  her  death,  she  delivered  the  will  in  a  sealed  en- 
velope to  F.,  one  of  the  executors  named  therein,  in  whose  cus- 
tody it  remained  until  after  her  death,  telling  him  "  that  she  wanted 
him  to  manage  for  her."  F.  deposed  that  both  the  attesting  wit- 
nesses were  dead,  that  the  will  was  in  the  handwriting  of  Sidney, 
one  of  them ;  and  he  believed  the  word  "  Barrell "  to  have  been 
a  clerical  error  of  Sidney's. 

Dr.  Deane,  Q.  C. :  The  execution  satisfies  the  Wills  Act.  (In 
the  goods  of  Bryce,  2  Curt.  325,  and  In  the  goods  of  Clark,  lb. 
329.) 

Sib  ( '.  ( 'resswell. — There  is  enough  to  show  that  the  will  is  really 
that  of  the  person  whose  it  professes  to  be.  Her  mark,  at  the  foot 
or  end  of  it.  is  a  sufficient  execution,  and  that  which  some  one  else 
wrote  against  her  mark  cannot  vitiate  it. 

I  III.     POSn  ION    OF    TIIK    SICNA  I  IUK. 

In  Bome  statutes  the  place  of  the  signature  is  not  prescribed.1 
According  to  others,  it  i-  prescribed,  as.  tor  instance,  in  Ohio  the 
will  must  be  "signed  at  the  end*";  in  New  York,  "  subscribed  at, 
the  end";  in  England,  "signed  at  the  fool  or  end,"  etc.     Under 


]  See  \ih  v.  Armstrong,  given  post. 

•  Glancy  v.  Glancy,  IT  <».  St.  184. 


224  EXECUTION. 

both  forms  there  are  numerous  cases  arising  out  of  the  position  of 
the  signature.  The  following  will  show  the  principles  of  the  two 
systems. 

(a).  Position  not  specified  by  Statute. 

The  testator  wrote  out  his  own  will,  beginning  "In  the  Name 
of  God,  Amen,  7,  John  Stanley,  make  this  my  last  will  and 
testament"  He  did  not  subscribe  his  name,  but  affixed  his  seal, 
and  had  the  will  subscribed  by  three  witnesses  in  his  presence. 
"  And  after  several  Arguments  it  was  adjudged  by  the  whole  Court, 
sc.  North,  Wyndham,  Charlton  and  Levinz  to  be  a  good  will ;  for 
being  written  by  himself,  and  his  Name  in  the  Will,  it  is  a  suffi- 
cient Signing  within  the  Statute,  which  does  not  appoint  where  the 
Will  shall  be  signed,  in  the  Top,  Bottom,  or  Margin,  and  there- 
fore a  Signing  in  any  Part  is  sufficient."  x 


TESTATOR'S  SIGNATURE. -POSITION. —WRITTEN  BY  ANOTHER. 
Armstrongs  Ex'r  vs.  Armstrong's  Heirs. 

Alabama  Supreme  Court,  1857. 
(29  Ala.  538.) 

Appeal  from  the  Court  of  Probate  of  Lawrence,  which,  on  appli- 
cation for  probate  of  the  will  of  James  Armstrong,  deceased,  sus- 
tained a  demurrer  to  proponent's  evidence. 

The  will  began  in  these  words : 

"  In  the  name  of  God,  amen.  I,  James  Armstrong,"  etc.  The 
name  of  the  testator  did  not  appear  elsewhere.  The  entire  instru- 
ment was  in  the  handwriting  of  testator's  physician,  Dr.  Massie, 
and  was  dictated  by  testator,  and  approved  and  adopted  by  him 
when  written.  Probate  was  contested  on  the  ground  that  the  will 
had  not  been  duly  signed. 

1  Lemayne  v.  Stanley,  3  Lev.  1 ;  under  the  present  English  statute  of  wills 
the  testator's  signature  must  be  signed  at  the  foot  or  end  of  the  will.  (For 
a  further  English  statute  on  this  subject  see  Appendix,  post.)  The  statute 
under  which  this  case  arose,  however,  the  Statute  of  Frauds,  29  Charles  II.,  is 
that  on  which  most  of  our  statutes  of  wills  are  based,  and  it  has  been  often 
cited  and  on  this  point  approved  in  cases  arising  under  them  in  States  where 
no  statutory  change  has  been  made.     See  Armstrong  v.  Armstrong,  post. 


testator's  signature.— written  by  another.     225 

Rice,  C.  J-— By  our  statute  law,  every  persou  over  the  age  of 
eighteen  years,  of  sound  mind,  may  by  his  last  will  dispose  of  all 
of  his  personal  property  ;  and  every  person  of  the  age  of  twenty- 
one  years,  of  sound  mind,  may  by  his  last  will  devise  his  lands,  01 
any  descendible  interest  lie  may  have  therein.     Code,  sees.  1589, 

1595. 

Except  in  certain  cases,  of  which  the  present  is  not  one,  the 
formalities  requisite  to  a  will,  under  section  1611  of  the  Code,  are, 
1st.  that  it  be  in  writing  ;  2d,  that  it  be  signed  by  the  testator,  "or 
hy  sorru  person  in  his  presence,  and  hy  his  direction" ;  3d,  that  it 
be  attested  by  at  least  two  witnesses,  who  must  subscribe  their 
names  thereto  in  the  presence  of  the  testator. 

In  the  case  at  bar,  it  appears  clearly  from  the  evidence,  that  the 
first  and  third  of  these  requisites  have  been  complied  with  ;  and 
the  questit  »n  is,  whether  the  second  of  them  has  been  complied  with. 

Section  Kill  of  the  Code,  so  far  as  it  relates  to  the  second 
requisite,  is  a  substantial  transcript  of  that  part  of  the  5th  section  of 
29th  Car.  II.,  ch.  3,  which  related  to  the  signing  of  the  will ;  and 
therefore,  the  construction  which  has  been  put  upon  that  part  of 
the  British  statute,  and  settled  as  its  true  construction,  by  the 
British  decisions  before  the  adoption  of  our  statute,  ought  to  be 
regarded  as  the  construction  which  our  legislature  intended  to  be 
put  upon  that  part  of  our  statute  now  under  consideration.  We 
shall  adopt  and  follow  that  construction. 

According  to  those  decisions,  if  the  testator  with  his  own  pen 
writes  his  own  name  in  the  beginning  of  the  will,  thus,  "I,  James 
Armstrong,"  with  the  design  of  giving  it  authority,  and  acknowl- 
edge it  to  1>"  his  writing  when  ho  calls  the  subscribing  witnesses  to 

e8i  it  ;  and  if.  at  the  time  of  acknowledgment,  he  does  not  intend 
to  subscribe  it.  the  signing  is  sufficient,  under  the  statute,  without. 

any  Subscription  oi  his  name  at  the  bottom.       Lemayne  v.  Stanley, 

::  Lev.  1  ;  Morison  v.  Tumour,  L8  Vesey  17<',;  Ellis  v.  Smith,  1  [b. 
11  ;  Grayson  v.  Atkinson,  -1  [b.  454  ;  Stonehouse  v.  Evelyn,  :*>  P. 
Wms.  Rep.  254  ;  Miles'  Will,  1  Dana's  Rep.  I  ;  Jarmanon  Wills,  T<>. 
I,  |s  nol  essential  that  the  testator  should  write  his  own  name. 
The  British  Btatute,  ae  well  as  our  own,  allows  a  will  to  be  signed 

for   him  by  another;   and    hi-  name,  when  written    hy  another,  for 

him,  in  hie  presence,  ami  by  hi-  direction,  will  have  the  same  effect 
as  if  it  had  been  written  by  himself,     Although  his  name  is  not 

i:» 


226  EXECUTION. 

written  by  himself,  nor  subscribed  to  the  will ;  yet,  if  it  be  written 
hi  the  beginning  of  the  will  by  another,  in  his  presence,  and  under 
his  direction  ;  and  if  it  be  acknowledged  by  him  to  the  attesting 
witnesses,  at  the  time  he  calls  on  them  to  attest  and  subscribe  it,  it 
will  be  as  effectual  as  if  with  his  own  pen  he  had  written  it.  See 
the  authorities  cited  supra;  and  Martin  v.  Wotton,  1  Lee  130; 
In  the  goods  of  Clark,  2  Curteis  329  ;  Addy  v.  Grix,  8  Yesey  505  ; 
10  Bacon's  Abr.  (edition  of  1846),  490-503. 

As  the  party  who  opposed  the  probate  of  the  will  in  this  case, 
interposed  a  demurrer  to  the  evidence,  and  there  was  a  joinder 
therein,  it  was  the  duty  of  the  court  to  have  decided  against  him, 
if  the  jury  from  that  evidence  could  legally  have  found  against 
him.  We  do  not  say,  that  from  the  evidence  the  jury  would  have 
been  bound  to  find  against  him  ;  but  we  think  they  might  legally 
have  done  so.  Although  it  may  not  be  a  necessary  inference  from 
the  evidence,  that  the  name  of  the  testator  was  written  by  Dr. 
Massie  in  his  presence,  and  by  his  direction  ;  yet  it  is  an  inference 
which  the  jury  might  legally  have  drawn.  Spencer,  adm'r  of 
Donaldson,  v.  Rogers,  adm'r  of  Waters,  at  this  term ;  Shaw  v. 
White,  28  Ala.  637.  ' 

The  court  below  erred  in  sustaining  the  demurrer  to  the  evi- 
dence ;  its  judgment  is  therefore  reversed,  and  the  cause  remanded. 

[Adams  v.  Field,  21  Vt.  256.  Sometimes  the  statute,  without 
specifying  the  position  of  the  signature,  calls  for  a  signing  "  in 
such  a  manner  as  to  make  it  manifest  that  the  name  is  intended 
as  testator's  signature."     Warwick  v.  Warwick,  86  Va.  596.] 


TESTATOR'S  SIGNATURE.— WHERE  POSITION  NOT  SPECIFIED.1 
.flatter  of  Will   of  Booth. 

New  York  Court  of  Appeals,  Second  Division,  1891. 
(127  N.  Y.  109.) 

This  case  involved  the  validity  of  a  New  Jersey  will.     Testa- 
tor's name  appeared  only  at  the  beginning  of  the  will. 

Follett,  Ch.  J. — At  common  law,  if  a  person  wrote  his  name  in 

1  It  will  be  noticed  that  although  this  is  a  New  York  case  it  does  not  deal 
with  a  New  York  will  or  with  the  New  York  statute. 


TESTATOR'S   SIGNATURE. — POSITIOX   NOT  SPECIFIED.    227 

the  body  of  a  will  or  contract  with  intent  to  execute  it  in  that 
manner,  the  signature  so  written  was  as  valid  as  though  subscribed 
at  the  end  of  the  instrument.  (Merritt  v.  Clason,  12  John.  102; 
s.  c.  sub  nom.  Clason  v.  Bailey,  14  Id.  484 ;  People  v.  Murray,  5 
Hill  468;  Caton  v.  Caton,  2  H.  L.  127;  2  Kent's  Com.  511;  1 
Dart's  Y.  P.  [0th  ed.]  270 ;  1  Jar.  Wills  [Big.'s  ed.]  79.) 

A\Te  shall  assume,  without  deciding,  that  under  the  laws  of  New 
Jersey  a  will  may  be  legally  executed  if  the  name  of  the  testator 
is  written  by  him  in  the  body  of  the  instrument  with  intent  to  so 
execute  it.  The  statute  of  that  State  which  prescribes  the  mode 
in  which  wills  shall  be  executed,  provides :  "  All  wills  and  testa- 
ments ....  shall  be  in  writing  and  shall  be  signed  by  the  testa- 
tor, which  signature  shall  be  made  by  the  testator,  or  the  making 
thereof  acknowledged  by  him,  and  such  writing  declared  to  be  his 
last  will  in  the  presence  of  two  witnesses  present  at  the  same  time, 
who  shall  subscribe  their  names  thereto  as  witnesses  in  the  pres- 
ence of  the  testator."  Under  this  statute  it  was  held  In  re  McEl- 
waine  (18  N.  J.  Eq.  499)  that  "four  things  are  required:  First, 
that  the  will  shall  be  in  writing.  Secondly,  that  it  shall  be  signed 
by  the  testator.  Thirdly,  that  such  signature  shall  be  made  by  the 
testator,  or  the  making  thereof  acknowledged  by  him  in  the  pres- 
ence of  two  witnesses.  Fourthly,  that  it  shall  be  declared  to  be 
his  last  will  in  the  presence  of  these  witnesses.  Each  and  every 
one  of  these  requisites  must  exist.  They  are  not  in  the  alterna- 
tive. The  third  requisite  contains  an  alternative,  but  one  of  these 
alternatives  must  exist.  The  second  requisite,  the  signing  by  the 
testator,  must  exist.  The  second  alternative  of  the  third,  to  wit, 
that  he  acknowledged  'making  of  the  signature/  will  not  supply 
the  want  of  the  second.  Where  there  is  no  proof  as  to  the  mak- 
ing of  the  signature,  such  acknowledgment  is  sufficient  evidence 
that  he  made  it.  and  would  prove  compliance  with  the  requisite  o\ 
signing  by  him.     Bui  when   it   is  clear  that  the  testator  did  no! 

sign  flu-  will,  this  acknowledgment  is  not  sufficient.     The  word-  of 

the  act  are  clear,  ami  the  object  is  equally  clear,  ami  requires  this 
construction  to  the  words."  This  language  was  used  in  respeel  to 
a  will  to  which  the  name  of  the  testatrix  was  subscribed  by  one  of 
the  subscribing  witnesses al  her  request,  in  hoi'  presence,  and  in  the 
presence  of  both  subscribing  witnesses.  A.fter  this  was  done  the 
testatrix  -aid  "thai  was  her  o: •  ami  seal,"  hut  did  not  acknowl- 


228  EXECUTION. 

edge  it  to  be  her  signature,  nor  did  she  then  declare  that  the  in- 
strument was  her  will ;  and  it  was  held  not  to  have  been  executed 
m  accordance  with  the  statute. 

Wherever  the  name  of  a  testator  appears,  whether  in  the  body  or 
at  the  end  of  a  will,  it  must  have  been  written  with  intent  to  exe- 
cute it,  otherwise  it  is  without  force.  When  a  testator,  or  the 
maker  of  a  contract,  subscribes  it  at  the  end  and  in  the  manner  in 
which  legal  instruments  are  usually  authenticated,  a  presumption 
arises  that  the  signature  was  affixed  for  the  purpose  of  creating  a 
valid  instrument.  But  when  the  name  is  written  near  the  begin- 
ning of  the  document,  where,  as  a  rule,  names  are  inserted  by  way 
of  description  of  the  person  who  is  to  execute  it,  and  rarely  as  sig- 
natures, it  must,  before  it  can  be  held  to  have  been  inserted  for 
the  purpose  of  validating  the  instrument,  be  proved  to  have  been 
written  with  that  intent. 

The  record  contains  no  evidence  tending  to  show  that  Mrs. 
Booth,  directly  or  indirectly,  by  word  or  gesture,  referred  to  her 
name  in  the  first  line  of  the  paper  as  her  signature,  nor  is  there 
evidence  of  any  act  on  her  part  from  which  it  might  be  inferred 
that  the  name  there  written  was  intended  to  be  in  execution  of  a 
completed  will,  and  her  simple  declaration  to  Mamie  Clifford,  one 
of  the  subscribing  witnesses  :  "  This  is  my  will ;  take  it  and  sign 
it,"  standing  alone,  is  insufficient  to  sustain  a  finding  or  verdict, 
that  the  name  "  Cecilia  L.  Booth,"  written  by  her  in  the  first  line 
of  the  document,  was  there  written  with  intent  that  it  should  have 
effect  as  her  signature  in  final  execution  of  a  will. 

We  are  referred  by  the  learned  counsel  for  the  appellant  to  In  re 
Higgins  (94  JST.  Y.  554) ;  In  re  Phillips  (98  Id.  267) ;  In  re  Hunt 
(110  Id.  278),  in  which  it  was  held  that  when  a  testator  subscribes 
a  will  at  the  end  and  exhibits  it  and  the  signature  to  the  subscribing 
witnesses,  declares  it  to  be  his  last  will  and  testament  and  requests 
them  to  sign  it  as  witnesses,  it  is  a  sufficient  acknowledgment  of 
the  signature.  Those  cases  are  quite  different  from  the  one  at  bar, 
in  this :  The  signatures  having  been  subscribed  at  the  end,  in  the 
usual  way  in  which  instruments  are  finally  authenticated,  the  legal 
presumption  arose  that  the  signatures  were  written  for  the  pur- 
pose of  finally  executing  the  documents,  but  as  we  have  before 
shown,  there  is  no  legal  presumption  arising  from  the  face  of  this 
instrument  that  the  name  was  written  as  a  signature,  nor  is  there 


SIGNATURE   "AT  THE  END  "    OF   THE  WILL.  229 

evidence  outside  of  the  paper  from  which  such  an  inference  can 
be  safely  drawn.  It  has  been  the  object  of  the  statute's  of  the  vari- 
ous States  prescribing  the  mode  in  which  wills  must  be  executed, 
to  throw  such  safeguards  around  those  transactions  as  will  prevent 
fraud  and  imposition,  and  it  is  wiser  to  construe  these  statutes 
closely,  rather  than  loosely,  and  so  open  a  door  for  the  perpetra- 
tion of  the  mischiefs  which  the  statutes  were  designed  to  prevent. 

The  judgment  and  orders  appealed  from  should  be  affirmed, 
with  costs,  payable  out  of  the  estate. 

All  concur. 

Judgment  affirmed. 

(h).  Position  specified  by  Statute. 

SIGNATURE  "AT  THE  END"  OF  THE  WILL. 

Matter  of  Jacobson. 

Surrogate's  Court,  New  York  County,  New  York,  1887. 

(6  Dem.  298.) 

Application  for  probate  of  decedent's  will. 

RoUms,  S.— I  am  satisfied,  by  the  testimony  submitted  in  this 
proceeding,  that  the  paper  propounded  for  probate  as  the  will  of 
Dorothea  Jacobson  was  signed  by  her  in  the  presence  of  the  sub- 
scribing witnesses ;  that  those  witnesses  severally  appended  their 
names  to  such  paper  at  her  request,  and  that,  in  their  presence,  she 
declared  it  to  be  her  will.  It  is,  however,  contended  that  probate 
should  be  denied  because  the  signature  of  the  testatrix  is  not  at 
k-tli<-  end"  of  the  instrument,  as  required  by  law. 

('|,"ii  examination  of  the  alleged  will,  it  appears  that  the  signa- 
tures of  the  witnesses  are  below  the  signature  of  the  decedent,  and 
that,  underneath  them  all,  appear  the  words:  -William  Wolff  to 
be  executor.  Witness  Dv.  Harris,  Mrs.  Abrahamson  and  Mi. 
Goldberg."      WTien  tlii-  wa8  written,  or   by  whom    it  was  written, 

the  testimony  does  not  clearly  disclose.  There  is  no  appointment 
of  an  executor  in  the  body  of  the  instrument,  and  if  in  fad  the 
words  above  quoted  were  inserted  before  execution,  they  musl  he 
considered  a-  a  part  of  a  pretended  testamentary  paper,  which  is 
invalid  for  the  reason  insisted  upon  by  the  contestant's  counsel.  H. 
<„,  the  other  hand,  the  word.-  in  question  were  not  npmi  the  paper 


280  EXECUTION. 

at  the  time  it  was  signed  and  published,  its  validity  has  not  been 
destroyed  by  their  subsequent  insertion. 

Further  evidence  may  be  offered  in  this  regard,  before  the  final 
determination  of  this  controversy. 

[See  also  Glancy  v.  Glancy,  17  Ohio  St.  134  ;  Appeal  of  Wine- 
land  (Penn.),  12  Atl.  E.  301  ;  Sisters  of  Charity  v.  Kelly,  67  N.  Y. 
409  (415) ;  Matter  of  Hewitt,  91  N.  Y.  261  ;  Younger  v.  Duffie, 
94  N.  Y.  535  ;  Matter  of  Conway,  124  N.  Y.  455  ;  Matter  of 
O'Neil,  91  N.  Y.  516  ;  Brady  v.  McCrosson,  5  Kedf.  (N.  Y.)  431. 

SIGNATURE  "AT  THE  END"  OF  THE  WILL. 
Conboy,  appellant,  v.  Jennings  et  al. 

New  York  Supreme  Court,  1873. 
(1  T.  &  C.  622.) 

Appeal  from  decree  of  surrogate  of  New  York  County  denying 
probate  to  will  of  John  Jennings. 

Fancher,  J. — This  is  an  appeal  from  a  decree  of  the  surrogate 
of  New  York  refusing  to  admit  to  probate  a  paper  alleged  to  be 
the  will  of  John  Jennings,  deceased.  The  paper  was  written  on 
three  pages  of  note  or  letter  paper.  At  the  end  of  the  second 
page  the  testator  and  the  witnesses  subscribed  their  names.  The 
third  page  contained  a  sentence  addressed  to  the  appellant,  which 
was  subscribed  by  the  testator.  The  surrogate  treated  the  whole 
three  pages  as  one  instrument,  and  decided  that  one  page  could  not 
be  rejected  while  the  other  two  pages  were  left  to  stand  as  the 
will.  He  has  not  assigned  any  reason  for  such  a  conclusion.  The 
entire  paper  reads  as  follows : 

"  City  and  County  of  New  Yorke. 

In  sound  mind  and  proper  since  in  the  name  of  God  I  make  this 
Will.  I  will  two  thousand  dollars  to  my  sister,  Mrs.  Conboy,  and 
seven  hundred  dollars  to  John  Kindregan,  my  wife's  brother,  if  he 
dies  before  he  can  get  the  money,  his  three  childer  may  get  it,  that 
is,  Mick,  James  and  Kate.  I  also  lave  six  hundred  dollars  to  Celia, 
Mrs.  Lorkin,  and  if  she  is  ded  he  childer  may  get  the  money,  equel 
share,  and  twinty  pounds  to  Bridget,  Mrs.  Madin,  and  if  she  is  ded 
her  son  Patrick  or  childer  may  get  it.  I  also  lave  fifty  dollars  to 
Bislmp  McClusky  for  the  new  Catheral,  and  fifty  dollars  to  the 


SIGNATURE   "AT  THE   END"   OF  THE   WILL.  231 

Bishup  of  Brookly  for  the  new  Catheral,  and  fifty  dollars  to  the 
Fathers  in  Howbuckin  for  there  nue  church,  and  fifty  dollars  to 
the  sisters,  them  that  is  in  most  need  of  it.  I  give  full  pour  and 
a-thority  and  controle  to  sell  my  property  in  Brooklyn  to  my  sister 
Mrs.  Conboy,  and  to  receive  the  rent  of  it,  House  No.  865  Pacific 
street,  Brooklyn. 

With  good  since  and  sound  mind  I  make  this  will 
the  tenth  day  of  January  eighteen  hundred  and 
seventy-three  1873.  John  Jennings. 

"Witness  by  us  this  10th  )    Peter  Daly, 

day  of  January,  1873.  f    Thomas  H.  Davey. 

Margret  if  you  get  five  thousand  dollars  for  the  house  you  will 
give  three  hundred  dollars  to  Delia  and  three  hundred  dollars  to 
each  of  the  Margrets.  John  Jennings." 

It  appears  that  the  testator  had  written  with  his  own  hand  the 
three  pages,  and  had  signed  his  name  in  two  places,  to  wit :  At  the 
end  of  the  second  page  after  the  date  of  the  paper,  and,  also,  at  the 
end  of  the  third  page,  after  the  remark  or  request  to  Margaret. 
Such  signatures  had  already  been  written  when  the  witnesses 
attended,  and  the  will  was  published  and  attested.  There  is  evi- 
dence in  the  form  of  the  paper,  and  especially  in  the  wording  and 
date  of  it,  that  the  testator  intended  the  first  two  pages  to  be  his 
will,  and  the  residue  to  be  a  request  to  Margaret.  There  is  nothing 
in  the  paper  itself,  nor  in  the  facts  proved,  that  necessarily  estab- 
lishes another  intention.  In  point  of  fact  as  well  as  law,  the  first 
two  page-  have  all  the  requisite  formalities  and  dictinctness  of  a 
will.  The  paper  from  the  beginning  to  the  end  of  the  two  pages 
where  the  testator  first  signed  it,  and  where  the  witnesses  also 
signed  their  name-  to  attest  its  execution,  is  a  sufficient  will.  More- 
over, the  circumstance  that  the  testator  closed  the  first  two  pages 
with  the  date  of  the  instrument  and,  with  his  signature,  is  evidence 
that  he  intended  his  will  to  conclude  at  the  end  of  the  first  two 
pages  of  the  paper.  The  witnesses  concurred  in  that  purpose,  by 
Bigning  their  names,  as  witnesses,  t<>  an  attesting  memorandum  at 

the  end  of   the   -re,, ml    pa;_r< ',  ti' ■:! rly  I »] '1  »< »81 1 6   tli»'   signature   i>t    the 

testator.     The  inference  would  be  thai  his  will  ended  there.1 


McGuire  v.  Kerr.  2  Bradf.  256. 


232  EXECUTION. 

There  is  no  necessary  connection  between  the  remark  to  Mar- 
garet contained  in  the  third  page  of  the  paper,  and  the  will  itself 
written  on  the  first  two  pages  of  the  paper.  The  unattested  sen- 
tence on  the  third  page  does  not  therefore  affect  the  sufficiency  or 
the  validity  of  the  attested  will,  and  is  not  part  of  it.  Owens  v. 
Bennett,  5  Ilarr.  (Del.)  367 ;  Carle  v.  Underbill,  3  Bradf.  101; 
In  the  goods  of  Taylor  (9  E.  L.  &  E.  582),  15  Jur.  1090 ;  In  the 
goods  of  Giles  Davis,  3  Curteis  748  ;  In  the  goods  of  Mary  Jones, 
4  Notes  of  Cases  532 ;  Tonnele  v.  Hall,  4  N.  Y.  140. 

It  is  objected  that  the  signature  was  not  acknowledged.  The 
testator  produced  the  paper  to  which  he  had  already  affixed  his 
signature  and  requested  the  witnesses  to  attest  it.  It  was  read  over 
at  his  request,  and  he  declared  it  to  be  his  will.  It  was  said  by 
the  learned  judge  in  Baskin  v.  Baskin,  36  N.  Y.  419,  that  there  could 
be  no  more  unequivocal  acknowledgment  of  a  signature  thus  affixed, 
than  presenting  it  to  the  witnesses  for  attestation,  and  publishing 
the  paper  so  subscribed  as  his  will.     See,  also,  the  cases  there  cited. 

We  think  the  paper  propounded  as  the  will  of  the  testator  down 
to,  and  including  his  first  signature,  and  the  signatures  of  the  wit- 
nesses, was  sufficiently  proved  before  the  surrogate  as  the  last  will 
and  testament  of  John  Jennings,  deceased,  and  that  the  same  should 
have  been  admitted  to  probate. 

The  decree  of  the  surrogate  should  be  reversed  with  costs, 
chargeable  on  the  estate ;  and  an  order  be  made  that  the  surrogate 
admit  to  probate  that  portion  of  the  paper  as  the  will  of  the  testator 
above  specified.1 

Ingraham,  P.  J.,  and  Barrett,  J.,  concurred. 

Ordered  accordingly. 

SUBSCRIPTION.— LOUISIANA  LAW  AND  ITS  SOURCES. 
Succession  of  Miss  Aglac  Armant.2 

Louisiana  Supreme  Court,  1891 
(43  La.  Ann.  310.) 
The  opinion  of  the  court  was  delivered  by 
Fenner,  J.—"  Testament  d'Aglae  Armant."     Such  is  the  cap- 


1  This  case  is  referred  to  in  the  opinion  in  Sisters  of  Charity  v.  Kelly,  67 

N.  Y.  409  (416). 

2  This  case  is  here  given  chiefly  to  call  attention  to  the  sources  of  the 
Louisiana  law  and  the  fact  that  its  history  is  peculiar. 


LOUISIANA    LAW    AND   ITS   SOURCES.  233 

tion  appearing  at  the  beginning  of  an  olographic  writing  contain- 
ing testamentary  dispositions  and  offered  for  probate  as  a  will,  but 
without  any  signature  at  the  end ;  and  the  question  is,  does  this 
caption  import  a  signature  as  required  to  an  olographic  testament  ? 
Before  the  adoption  of  the  Napoleon  Code  an  ordinance  of  Louis 
XV.  provided  that  olographic  testaments  should  be  "  entirely  writ- 
ten," dated  and  signed  in  the  handwriting  of  him  or  her  making 
them. 

Under  this  provision  the  jurisprudence  of  France  required,  in 
the  language  of  Pothier,  that  "  la  signature  doit  etre  a  la  fin  de 
Tact,  parcequ'elle  en  est  le  complement  et  la  perfection;  e'est 
pourquoi  un  post  servptwm  apres  signature  est  mil,  s'il  n'est  pas 
aussi  Bigne."  Poth.  Don.  and  Test,  Chap.  I.,  Art.  2,  Sec.  2. 
Thus  interpreted,  the  same  provision  passed  into  the  Napoleon 
Code.  The  commentators  on  the  Code  and  the  French  tribunals 
have  uniformly  adopted  the  same  interpretation.  The  only  excep- 
tion made  (and  that  by  a  divided  opinion)  is  that  the  date  may 
follow  the  signature,  and  that  words  written  after  the  signature 
which  are  superfluous  may  be  disregarded.  Thus  in  the  case  of 
Veuve  Guyot,  the  will  ended  thus:  "Fait  par  moi  Pauline  d'Es- 
pinose  Veuve  Guyot,  qui  ai  signe  apres  la  lecture  et  meditation." 
The  court  maintained  the  will  on  the  ground  that  the  name  was 
intended  as  a  signature,  and  that  "the  two  lines  which  follow  the 
signature  can  have  no  influence  on  the  form  of  the  testament, 
which  was  perfect  when  they  were  written.*1  Jour,  du  Palais, 
20  Apr.  1812.  It  is  useless  to  cite  the  French  commentators; 
they  all  agree  that  testamentary  dispositions  following  the  signa- 
ture are  invalid. 

The  following  is  a  summary  of  the  French  doctrine  and  author- 
ities as  given  by  an  annotator  of  the  <  'ode  :  "  Although  the  natural 
place  of  the  signature  be  at  the  end  of  the  act,  because  if  expresses 
the  final  approval  given  by  the  testator  to  the  dispositions  of  his  last 
will  which  he  has  made  it  is,  however,  admitted  that  the  writing 
by  the  testator  of  bis  name  toward  the  end  of  the  act  may  be  con- 
sidered   as   a    signature    if    it    is    placed    after   all    the   dispositions 

constituting  the  testament.     It  does  not  matter  thai  after  the  name 

there  may  follow  some  words  connected  with  it,  if   the  words  thus 

following  are  superfluous  or  useless,"  quoting :  Cassation,  20  April, 
L813;   Merlin   Rep.  Verbo  Signature,  Sec.  3,  Art.  7;  Joullier  on 


234  EXECUTION. 

Art.  970  Fr.  Code ;  Marcade  on  Art.  970  Fr.  Code ;  4  Demante 
No.  115  ;  4  Masse  and  Yergd,  p.  96,  Sec.  438 ;  7  Aubry  and  Rau, 
p.  108,  Sec.  068;  Yazeille  on  Art.  970,  No.  4;  2  Grenier  and 
Bayle,  No.  228 ;  4  St.  Espes-Lescot,  No.  1010 ;  21  Demolombe, 
No.  114;  Coin  Delisle,  Art.  970,  No.  42;  3  Troplong,  No.  1494; 
13  Laurent,  No.  227.  See  also  Cross  on  Successions,  who  takes 
the  same  view. 

Marcade,  who  is  as  liberal  as  any,  in  commenting  on  a  testament 
ending  thus :  "  Fait  et  signe  par  moi  Michel  Francois,  Falla,  le  20 
Dec.  1809,"  says :  "  The  question  must  be  determined  according 
to  the  circumstances  of  fact.  If  the  names  are  accompanied  with 
the  ordinary  paraph  of  the  party ;  if,  having  no  paraph,  the 
party  has  taken  care  to  write  the  name  in  more  pronounced  char- 
acter than  the  rest  of  the  writing ;  if  the  name,  though  written 
in  like  character,  is  that  of  a  party  whose  acts  generally  have  been 
signed  in  ordinary  writing,  and  by  placing  the  name  in  the  body 
or  the  concluding  phrase,  one  might  say  that  it  was  a  signature, 
and  that  the  testament  was  valid.  But  if,  on  the  contrary,  the 
name  thus  written  was  without  a  paraph  and  in  no  manner  distin- 
guished from  the  rest  of  the  writing,  and  comes  from  a  party  who 
has  always  attached  to  his  acts  an  independent  signature,  one  would 
say  this  was  not  a  signature."  4  Marc.  p.  10.  Applying  these 
tests,  we  find  that  the  name  of  this  testatrix  is  written  without  a 
paraph,  though  the  evidence  shows  that  she  usually,  but  not  uni- 
versally, employed  one ;  that  the  name  is  written  without  any 
distinctive  characteristics,  and  that,  as  appears  from  every  docu- 
ment produced,  she  invariably  attached  an  independent  signature 
at  the  end.  Moreover,  it  seems  to  us  that  the  coupling  of  the  "  d  " 
with  the  name,  in  itself  excludes  the  idea  of  its  being  intended  as 
a  signature. 

Thus,  under  French  jurisprudence,  this  will  would  fail  to  stand 
for  two  reasons ;  (1)  because  the  writing  of  the  name  was  not  in- 
tended as  a  signature  ;  (2)  because,  whether  so  intended,  or  not,  the 
signature  was  not  at  the  end  of  the  act. 

This  jurisprudence  was  extant  and  well  established  when,  in 
1825,  the  article  of  the  French  code  was  copied  into  our  own.  We 
think  it  to  be  a  fair  presumption  that  the  framers  of  our  Code, 
familiar  with  the  interpretation  of  the  same  language,  both  prior 
to  and  subsequent  to  the  Napoleon  code,  must  have  intended  and 


LOUISIANA  LAW   AND   ITS   SOURCES.  235 

expected  that  our  own  article  should  receive  the  same  interpreta- 
tion, particularly  as  it  conforms  to  the  common  and  customary 
meaning  attached  to  the  word  signature,  as  well  as  to  the  defini- 
tions thereof  in  all  standard  dictionaries. 

Why  should  we  depart  from  it  ? 

It  is  true  that  in  interpreting  a  like  provision  of  the  first  Eng- 
lish Statute  of  Frauds,  an  English  court  held  that  writing  the  name 
at  the  beginning  of  the  testament  supplied  the  absence  of  signature 
at  the  end  ;  and  some  other  courts,  with  that  subjection  to  prece- 
dent which  characterizes  that  system,  followed  the  decision.  But 
though  following  it,  some  of  the  judges  intimated  that  if  it  were 
res  nova  they  would  decide  differently,  and  the  doctrine  was  con- 
demned by  sound  legists.  Dr.  Browne,  in  his  work  on  Civil  Law, 
and  Dr.  Christian,  in  his  edition  of  Blackstone,  criticise  it  severely. 
Browne's  Civ.  L.,  p.  278,  note  16. 

And  such  was  the  prevalent  dissatisfaction  that  an  act  of  Parlia- 
ment was  passed  to  amend  the  statute  so  as  expressly  to  require 
the  signature  to  be  at  the  hottom  of  the  testament. 

"We  were  at  first  much  impressed  with  the  clear  proof  made 
that  the  deceased  intended  this  paper  to  be  her  testament.  But 
there  is  no  more  doubt  that  she  intended  the  invalid  nuncupative 
codicil  to  be  her  testament.  Yet,  as  the  latter  was  attested  by 
women,  who  are  incompetent  testamentary  witnesses,  no  one  claims 
it-  validity.  And  so  if  the  olographic  will  is  not  signed  as  required 
by  law,  her  intentions  cannot  save  it. 

The  question  is  not  whether  she  intended  this  paper  to  be  her 
will,  but  whether  it  is  a  will  clothed  with  the  forms  of  law.  An 
olograph,  like  every  other  testament,  is  a  solemn  act.  It  matters 
not  how  clearly  it  conveys  the  last  wishes  of  the  decedent,  if   it    is 

not  clothed  with  the  forms  prescribed,  it  is  null. 

Even  apart  from  the  name  not  being  at  the  end  of  the  testa- 
ment, we  think  the  proof  doe-  not  show  thai  she  intended  to  sign 
at  all.  It  simply  -hows  that  she  did  not  think  or  know  that  a  sig- 
nature wae  essential.     If  she  had  known  thai  it  was  necessary  thai 

tin'  testamenl   Bhonld  !><■  signed,  if  is  impossible  t seive  how, 

in  so  importanl  ;i  matter,  -he  should  have  acted  bo  ambiguously 
;m<l  bo  differently  from  the  course  universally  pursued  by  her  in 
signing  other  acts  and  documents  of  every  description.  The 
simple  fad  is  she  did  not  know  a  signature  wai    necessary,  and 


236  EXECUTION. 

therefore  did  not  sign.  Her  mistake  in  this  respect  is  unfortunate 
in  the  interests  of  justice,  but  it  cannot  save  the  will. 

The  remaining  contention  of  appellant,  that  the  testatrix  had 
signed  the  will  at  the  end  of  the  act,  and  that  her  signature  had 
been  cut  off  by  some  third  person,  is  so  inconsistent  with  the  one 
just  disposed  of,  that  it  hardly  lies  in  the  mouth  of  appellant  to 
urge  them  both.  But,  moreover,  it  is  unsupported  by  proof  and 
has  nothing  to  rest  on. 

Judgment  affirmed. 

[Alfred  N.  Duffie,  a  testator,  subscribed  his  name  after  the 
attestation  clause.  The  question  was  whether  the  will  was  "  sub- 
scribed at  the  end."  The  court  hold  that  unnecessary  matter,  such 
as  the  attestation  clause,  or  even  entirely  irrelevant  matter,  as,  in 
the  case  supposed  by  the  court,  the  Apostles'  Creed,  may  be  in- 
corporated into  a  will  and  form  part  of  it,  if  testator  so  chooses, 
and  in  such  case  the  signature,  though  following  it,  will  be  "at 
the  end  of  the  will."  'J 

II.  MAKING  OR  ACKNOWLEDGMENT  OP   SIGNATURE 
BEFORE  WITNESSES. 

Here  also  the  statutes  of  the  different  jurisdictions  vary  among 
themselves.  That  of  New  York,  for  instance,  requires  that  the 
testator  shall  either  make  his  subscription  in  the  presence  of  the 
attesting  witnesses ;  or  shall  acknowledge  it  to  each  of  the  attest- 
ing witnesses  to  have  been  made  ;  while  under  that  of  Virginia2  the 
signature  must  be  made  in  such  a  manner  as  to  make  it  manifest 
that  the  name  is  intended  as  a  signature,  and  moreover  that  unless 
the  will  be  wholly  written  by  the  testator,  the  signature  shall  be 
made  or  the  will  acknowledged  by  him  in  the  presence  of  witnesses 
present  at  the  same  time  ;  and  in  Massachusetts 3  the  signature  need 
be  neither  made  nor  acknowledged  by  him  in  the  presence  of  the 
witnesses.  The  various  leading  requirements  under  this  head, 
found  in  all  or  some  of  the  statutes  of  wills,  may  be  best  examined 
under  the  following  division.  In  every  instance,  the  particular 
statute  involved  must  be  considered. 


1  Younger  v.  Duffle,  94  N.  Y.  535.  2  Code  of  Va.,  sec.  2514. 

3  Mass.  Pub.  Stat.  747,  sec.  1. 


ACKNOWLEDGMENT   OF   SIGNATURE.  237 

(a).  Signed  in  presence  of  witnesses. 

The  principles  governing  the  interpretation  of  this  phrase  are 
more  commonly  discussed  in  connection  with  the  usual  analogous 
provision  that  the  witnesses  must  sign  in  the  presence  of  the  tes- 
tator. Statement  of  them  may  therefore  be  conveniently  deferred 
until  we  take  up  the  subject  of  signing  by  witnesses. 

(b).  Acknowledgment  of  testator's  signature. 

Here  the  testator  signs  the  will  beforehand,  and,  if  required  by 
the  governing  statute,  he  must  then  acknowledge  it  before  the 
witnesses. 

Illustration. 

1.  John  Hoysradt,  the  testator,  signed  the  will  in  the  presence 
of  one  witness,  subsequently  acknowledged  his  signature  to  a 
second,  and  later  still  acknowledged  it  to  a  third.  Under  the 
terms  of  the  New  York  statute  above  stated,  this  was  held  suffi- 
cient.1 

2.  Sometimes,  however,  as  in  the  present  English  Wills  Act, 
the  acknowledgment  must  be  made  before  two  or  more  witnesses 
"  present  at  the  same  time." 


ACKNOWLEDGMENT  OF  SIGNATURE. 
Buskin  v.  Buskin  unci  others. 

New  York  Court  of  Appeals,  1867. 
(36  N.  Y.  416.) 

Appeal  from  a  judgment  of  the  Supreme  Court,  reversing  the 
decree  of  the  surrogate  <>f  Yates  County,  rejecting  the  will  of 
"William  Baskin,  deceased.     The  facts  are  sufficiently  stated  in  the 

opinion. 

Porter,  J.  The  mere  statement  of  the  facts  is  decisive  of  the 
issue.  Tin-  will  waa  prepared  in  the  presence  of  the  testator,  and 
under  his  immediate  direction.    It  received  his  approval,  clause  by 

clause.      The  whole   in.-t nmieiit   was  then   read  t<>  him,  and  he  SUb- 

Bcribed  it  in  the  presence  of  the  draftsman,  who,  al  his  request, 

Boysrodl  v.  Kingman,  22  N.  V   872;  followed,  Matter  of  Potter,  88  N.  V. 
State  Rep.  986;  bo,  also,  Grubba  v.  Marshall  (Ky.),  18  S.  W.  447. 


238  EXECUTION. 

signed  it  as  an  attesting  witness.  The  other  witness,  Mr.  Wilsey, 
was  called  in  from  an  adjoining  apartment,  and  the  testator  told 
him  he  wished  him  to  sign  the  will.  The  instrument  was  then  on 
the  stand  at  his  bedside,  where  he  had  just  before  subscribed  it. 
Mr.  Wilsey  saw  that  his  signature  was  already  attached  ;  and  the  tes- 
tator, taking  the  paper  thus  executed  in  his  hand,  in  presence  of 
both  the  witnesses,  declared  it  to  be  his  last  will  and  testament. 
In  compliance  with  his  request,  Wilsey  then  subscribed  the  attes- 
tation clause,  which  stated  that  the  will  was  signed  and  published 
in  the  presence  of  the  attesting  witnesses.  It  is  clear  that  the  tes- 
tator intended  a  complete  execution  of  the  instrument ;  that  with 
this  view  he  signed  it ;  that  he  supposed  he  was  acknowledging 
tliat  he  had  done  so,  when  he  requested  Wilsey  to  attest  the  truth 
of  the  facts  stated  in  the  certificate ;  and  that  Wilsey  so  supposed 
when  he  certified  that  he  was  a  witness  to  the  signature  as  well  as 
the  publication.  The  remark  of  the  testator  that  "  this  kills  the 
other  will,"  would  have  been  wholly  unmeaning  if  he  did  not  in- 
tend to  acknowledge  the  signature  he  had  affixed  to  the  will  which 
he  held  in  his  hand. 

The  subscription  and  publication  of  a  testamentary  instrument 
are  independent  facts,  each  of  which  is  essential  to  its  complete 
execution.  (2  R.  S.  63,  sec.  40.)  The  requirement  that  the  first 
shall  be  made  or  acknowledged  in  the  presence  of  each  of  the  wit- 
nesses who  attest  it,  is  to  identify  and  authenticate  the  instrument 
as  one  subscribed  by  the  party.  The  requirement  of  publication 
in  preseuce  of  each,  is  to  prevent  imposition  upon  the  testator  by 
procuring  him  to  execute  and  acknowledge  a  will  or  codicil,  under 
pretence  that  it  is  a  paper  of  a  different  nature.  The  two  prerequi- 
sites are  distinct,  in  their  nature,  as  well  as  their  purpose,  and  an 
omission  to  comply  with  either  is  fatal  to  the  validity  of  the  in- 
strument. There  must  be  satisfactory  proof  of  the  subscription  and 
publication  of  the  will  in  the  presence  of  two  witnesses.  In  re- 
spect to  the  subscription,  it  is  sufficient  that  it  be  either  made,  or 
acknowledged,  in  the  presence  of  those  who  attest  it.  If  it  be  un- 
signed, it  is  no  will ;  and  in  that  case,  publication  and  attestation 
are  alike  unavailing.  If  signed  by  another  than  the  testator,  and 
the  signature  be  purposely  concealed  from  his  view  and  that  of 
the  attesting  witnesses,  the  mere  publication  of  the  instrument  as 
his  last  will  and  testament  cannot  fairly  be  deemed  an  acknowledg- 


SIGNATURE  NOT  VISIBLE  TO   WITNESSES.  239 

merit  that  the  unseen  subscription  was  made  by  his  direction. 
(Chaffee  v.  Baptist  Missionary  Convention,  10  Paige  85,  91 ;  Lewis 
v.  Lewis,  1  Kern.  220 ;  Rutherford  v.  Rutherford,  1  Denio  33.) 

When,  however,  the  testator  produces  a  paper  to  which  he  has 
personally  affixed  his  signature,  requests  the  witnesses  to  attest  it, 
and  declares  it  to  be  his  last  will  and  testament,  he  does  all  that 
the  law  requires.  It  is  enough  that  he  verifies  the  subscription  as 
authentic,  without  reference  to  the  form  in  which  the  acknowl- 
edgment is  made ;  and  there  could  be  no  more  unequivocal  ac- 
knowledgment of  a  signature  thus  affixed,  than  presenting  it  to  the 
witnesses  for  attestation,  and  publishing  the  paper  so  subscribed 
as  his  will.  (Peck  v.  Cary,  27  N.  Y.  9,  29,  30 ;  Tarrent  v.  Ware, 
25  Id.  125,  note ;  Coffin  v.  Coffin,  23  Id.  9,  15,  16 ;  Nickerson  v. 
Buck,  12  dishing  332,  312;  Dewey  v.  Dewey,  1  Mete.  353; 
Gage  v.  Gage,  3  Curteis  451  ;  Blake  v.  Knight,  Id.  547 ;  White  v. 
Trustees  of  British  Museum,  0  Bing.  310.)  [Matter  of  Phillips, 
98  N.  Y.  267  (273);  Matter  of  Look,  26  K  Y.  State  Rep.  745 
(affi'd  125  N.  Y.  762) ;  Daintree  v.  Butcher,  13  P.  D.  102.] 

The  judgment  of  the  Supreme  Court  should  be  affirmed. 

All  the  judges  concurred  in  the  opinion  of  Porter,  J.,  except 
Parker,  J.,  who  delivered  a  dissenting  opinion,  in  which  Grover, 
J.,  concurred. 

Judgment  affirmed. 

[  But  in  a  case  where  the  only  request  was  made  by  a  third  party, 
in  another  room,  and  it  was  not  clear  that  testator  even  heard  the 
request,  the  fact  of  the  request,  and  signing  by  the  witness,  would 
imt  involve  the  conclusion  of  an  implied  "declaration"  by  testator. 
Ludlow  v.  Ludlow,  35  N.  J.  Eq.  480.] 


SIGNATURE   NOT   VISIBLE  TO   WITNESSES. 
■n  re  Mackay's  Will. 

New  Youk  Coukt  of  Appeals,  1888. 
(110  N.  Y.  611.) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
( lourt,  third  department. 
The  surrogate  of  St.  Liwrenee  (  oimt\   refused  probate  to  the 


240  EXECUTION. 

will  of  James  Mackay,  deceased.  On  appeal  to  the  General  Term 
the  surrogate's  decree  was  affirmed.  From  the  General  Term 
judgment  this  appeal  was  taken  to  the  Court  of  Appeals. 

Earl,  J. — The  subscribing  witnesses  came  to  the  dwelling-house 
of  the  deceased  by  previous  appointment,  and,  while  seated  at 
his  writing-desk,  he  said  to  them :  "  Gentlemen,  what  I  sent  for 
you  for  was  to  sign  my  last  will  and  testament."  Thereupon  he 
took  from  his  writing-desk  the  instrument  offered  for  probate, 
and,  laying  it  before  the  witnesses,  said :  "  It  is  now  all  ready, 
awaiting  your  signatures."  He  then  presented  the  instrument  to 
the  witness  McCarrier  for  his  signature,  and  he  signed  it,  saying, 
as  he  did  so,  "I  am  glad,  Father  Mackay,  you  are  making  your 
will  at  this  time ;  I  don't  suppose  it  will  shorten  your  life  any," 
to  which  he  replied,  "  Yes,  he  wanted  it  done,  and  off  his  mind  "; 
and  then  the  witness  Mulligan,  who  had  joined  in  this  conversa- 
tion, signed  the  instrument,  as  a  witness.  At  the  time  of  exhibit- 
ing the  instrument  to  the  subscribing  witnesses  he  told  them  it 
was  his  will ;  but  he  handed  it  to  them  so  folded  that  they  could 
see  no  part  of  the  writing,  except  the  attestation  clause,  and  they 
did  not  see  either  his  signature  or  seal. 

There  would  undoubtedly  have  been  a  formal  execution  of  the 
will,  in  compliance  with  the  statutes,  if  the  witnesses  had  at  the 
time  seen  the  signature  of  the  testator  to  the  will.  Subscribing 
witnesses  to  a  will  are  required  by  law,  for  the  purpose  of  attesting 
and  identifying  the  signature  of  the  testator,  and  that  they  cannot 
do  unless  at  the  time  of  the  attestation  they  see  it.  And  so  it  has 
been  held  in  this  court.  In  Lewis  v.  Lewis,  11  N.  Y.  221,  where 
the  alleged  will  was  not  subscribed  by  the  testator  in  the  presence 
of  the  witnesses,  and  when  they  signed  their  names  to  it,  it  was  so 
folded  that  they  could  not  see  whether  it  was  signed  by  him  or  not, 
and  the  only  acknowledgment  or  declaration  made  by  him  to  them, 
or  in  their  presence,  as  to  the  instrument,  was,  "  I  declare  the  within 
to  be  my  will  and  deed,"  it  was  held  that  this  was  not  a  sufficient 
acknowledgment  of  his  subscription  to  the  witnesses  within  the 
statute.  In  that  case  Allen,  J.,  writing  the  opinion,  said  :  "  A  sig- 
nature neither  seen,  identified,  or  in  any  manner  referred  to  as  a 
separate  and  distinct  thing,  cannot  in  any  just  sense  be  said  to  be 
acknowledged  by  a  reference  to  the  entire  instrument  by  name  to 
which  the  signature  may  or  may  not  be  at  the  time  subscribed." 


DECLARATION    OF   THE   WILL.  241 

In  Mitchell  v.  Mitchell,  16  Hun  97.  affirmed  in  this  court  in  77 
N.  Y.  506,  the  deceased  came  into  a  store  where  two  persons  were, 
and  produced  a  paper,  and  said :  "  I  have  a  paper  which  I  want 
you  to  sign."  One  of  the  persons  took  the  paper,  and  saw  what  it 
was  and  the  signature  of  the  deceased.  The  testator  then  said : 
"  This  is  mv  will ;  I  want  you  to  witness  it."  Both  of  the  persons 
thereupon  signed  the  paper  as  witnesses,  under  the  attestation  clause. 
The  deceased  then  took  the  paper,  and  said,  "I  declare  this  to  be  my 
last  will  and  testament,"  and  delivered  it  to  one  of  the  witnesses  for 
safe  keeping.  At  the  time  when  this  took  place  the  paper  had  the 
name  of  the  deceased  at  the  end  thereof.  It  was  held  that  the  will 
was  not  properly  executed,  for  the  reason  that  one  of  the  witnesses 
did  not  see  the  testator's  signature,  and  as  to  that  witness  there  was 
not  a  sufficient  acknowledgment  of  the  signature  or  a  proper  attes- 
tation. It  is  true  that  in  Willis  v.  Mott,  36  N.  Y.  486,  491,  Davies, 
Ch.  J.,  writing  the  opinion  of  the  court,  said  that  "  the  statute 
does  not  require  that  the  testator  shall  exhibit  his  subscription  to 
the  will  at  the  time  he  makes  the  acknowledgment.  It  would 
therefore  follow  that  when  the  subscription  is  acknowledged  to  an 
attesting  witness  it  is  not  essential  that  the  signature  be  exhibited 
to  the  witness."  This  is  a  mere  dictum,  unnecessary  to  the  decision 
in  that  case,  and  therefore  cannot  have  weight  as  authority.  The 
formalities  prescribed  by  the  statute  are  safeguards  thrown  around 
the  testator  to  prevent  fraud  and  imposition.  To  this  end  the  wit- 
n< 'sscs  should  either  see  the  testator  subscribe  his  name,  or  he  should, 
the  signature  being  visible  to  him  and  to  them,  acknowledge  it  to 
be  his  signature.  Otherwise  imposition  might  be  possible,  and 
Bometimea  the  purpose  of  the  statute  might  be  frustrated.  We 
think,  therefore,  that  probate  of  the  will  was  properly  refused,  and 
that  the  judgment  below  should  be  affirmed,  without  costs. 

All  concur. 

Judgment  affirmed. 

III.  DECLARATION  OF  TTTE  WILL  TO  WITNESSES. 

In  some  jurisdictions  it  is  required  thai  the  testator  shall  declare 
the  [nstrumenl  in  question  to  be  his  lasl  will.1 


Mun.lv  v.  M.m.ly,  18  V  .1.  Eq.  290;  Odenwaelder  v.  Schorr,  8  Mo.  A.pp. 
168;  Lewi    v.  Lewis,  ll  NT.  Y.  220  I   Ivi  □  post). 
L6 


242  EXECUTION. 

In  other  jurisdictions  it  is  not  necessary  that  the  witnesses  should 
know  even  in  fact  that  the  instrument  the  execution  of  which  they 
are  attesting  is  a  will.1 

(a).    Where  declaration  is  not  required. 

George  A.  Turner,  a  testator,  did  not  inform  the  witnesses 
that  the  instrument  they  were  signing  was  a  will.  In  a  suit 
brought  to  contest  the  will,  the  trial  judge  charged  the  jury  that  a 
testator  must  in  some  way  communicate  to  the  witnesses  the  fact 
that  the  instrument  is  testamentary.  On  appeal  the  court  say : 
"  Our  statute  [of  Indiana]  requires,  in  order  to  the  valid  execution 
of  a  will,  that  it  shall  be  signed  by  the  testator,  or  by  some  one  in 
his  presence,  with  his  consent,  and  attested  and  subscribed  in  his 
presence  by  two  or  more  witnesses.  2  G.  &  H.  555,  sec.  18. 
There  is  nothing  in  this  statute  which  requires  that  the  testator 
shall  make  known  to  the  subscribing  witnesses  that  the  paper 
which  they  are  to  subscribe  is  a  will." 3 

(h).    Wfiere  declaration  is  required. 

DECLARATION  OF  THE  WILL. 
Lewis  v.  Lewis. 

(1854.     11  N.  Y.  220.) 

Appeal  from  a  decree  of  the  General  Term  of  the  Supreme 
Court  affirming  a  decree  of  the  surrogate  of  Kings  County,  which 
denied  probate  to  an  instrument  propounded  as  the  last  will  and 
testament  of  Thomas  Lewis. 

There  were  two  objections  to  the  instrument.  1.  That  the  sub- 
scription was  not  made  or  acknowledged  by  the  decedent,  in  the 
presence  of  the  attesting  witnesses ;  and  2.  That  it  was  not  de- 
clared by  him  at  the  time  to  be  his  last  will  and  testament. 

It  appeared  that  the  testator  called  the  witnesses  into  his  office 
and  turned  up  enough  of  a  paper  he  had  there  to  allow  them  to 
sign  and  asked  them  to  do  so.  He  merely  said :  "  I  declare  the 
within  to  be  my  free  will  and  deed."     The  witnesses  did  not  know 

1  Osborn  v.  Cook,  11  Cush.  532;  Turner  v.  Cook,  36  Ind.  129;  Canada's  Ap- 
peal, 47  Conn.  450;  Flood  v.  Pragoff,  79  Ky.  607;   Brown  v.  Mc blister,  34 
Ind.  375. 
.  2  Turner  v.  Cook,  36  Ind.  129. 


DECLARATION    OF   THE    WILL.  2-13 

that  the  paper  was  a  will,  though  one  of  them  thought  it  might  be 
because  testator  had  that  morning  sent  out  and  procured  a  blank 
will.     On  the  question  of  a  declaration  nothing  further  appeared. 

TT.  F.  Allen,  J.  (After  giving  the  statutory  requirements,  and 
making  some  preliminary  statements  of  principle,  and  finding  the 
first  of  the  two  objections  sustained.) 

The  second  objection  to  the  probate  is  also  well  taken.  To 
satisfy  the  statute  the  testator  must  in  some  manner  communicate 
to  the  attesting  witnesses  at  the  time  they  are  called  to  sign  as 
witnesses,  the  information  that  the  instrument  then  present  is  of  a 
testamentary  character,  and  that  he  then  recognizes  it  as  his  will, 
and  intends  to  give  it  effect  as  such.  It  must  be  declared  to  be  his 
last  will  and  testament  by  some  assertion  or  some  clear  assent  in 
words  or  signs,  and  the  declaration  must  be  unequivocal.  (Brinck- 
erhoof  \ .  Remsen  [8  Pai.  488  ;  affi'd  2ti  Wend.  325] ;  Rutherford  v. 
Rutherford,  L  Denio  33.)  The  policy  and  ohject  of  the  statute  re 
quire  this,  and  nothing  short  of  this  will  prevent  the  mischief  and 
fraud  which  were  designed  to  be  reached  by  it.  It  will  not  suffice 
that  the  witnesses  have  elsewhere  and  from  other  sources  learned 
that  the  document  which  they  are  called  to  attest  is  a  will,  or  that 
they  suspect  or  infer  from  the  circumstances  and  occasion  that  such 
is  the  character  of  the  paper.  The  fact  must  in  some  manner, 
although  no  particular  form  of  words  is  required,  be  declared  by 
the  testator  in  their  presence,  that  they  may  not  only  know  the 
fact,  hut  that  they  may  know  it  from  him,  and  that  he  understands 
it,  and  at  the  time  of  its  execution,  which  includes  publication, 
designs  to  rive  eifect  to  it  as  his  will,  and  to  this,  among  other 
thing-,  they  are  required  by  statute  to  attest.  Every  fact  is  im- 
portant in  view  (.1'  the  position  of  the  attesting  witnesses.  They 
should  he  satisfied  that  the  instrument  is  in  truth  the  lasl  will  and 
testameni  <>\'  the  party,  and  is  executed  and  published  as  such,  and 

t|,;it    he    is   of   -'Mind    and    disposing   mind    and    memory,  and  in  all 

respects  competent  to  perform  the  act.  The  law  simply  prescribes 
those  forms  which  it  was  supposed  were  best  calculated  to  enable 
the  witnesses  to  fulfil  their  office  and  attest  the  due  execution  of 
the  will.  'Idie  declaration  that  the  instrument  was  his  free  will 
and  deed,  was  equivocal,  and  would  he  satisfied  by  ;i  deed  executed 
voluntarily.  It  did  not  necessarily  inform  the  witnesses  that  it  was 
a  will  by  excluding  every  other  instrument  from  the  mind.     From 


244  EXECUTION. 

the  expression  they  could  not  know  that  the  testator  did  not  sup- 
pose the  instrument  was  a  deed.  It  is  a  very  common  form  of 
acknowledgment  of  the  execution  of  a  deed  to  acknowledge  it  as 
the  ki  free  act  and  deed  "  of  the  party,  and  the  expression  of  the 
decedent  varied  but  little  from  this  form. 

It  is  not  probable  that  any  wrong  would  be  done  in  this  case  to 
the  parties  or  to  the  intentions  of  the  deceased  to  give  effect  to  this 
document  as  a  will,  and  although  we  may  regret  that  the  provisions 
which  he  designed  to  make  for  his  family,  and  doubtless  supposed 
he  had  made,  must  fail  for  the  want  of  the  prescribed  formalities, 
the  statute  is  quite  too  explicit  to  authorize  a  departure  from  its 
terms ;  and  although  it  may  operate  with  apparent  harshness  in  this 
case,  it  is  a  beneficent  and  wise  statute,  and  the  public  interests 
will  be  best  subserved  by  a  strict  adherence  to  its  provisions. 

The  judgment  of  the  Supreme  Court  affirming  the  decree  of  the 
surrogate  must  be  affirmed  with  costs. 

Judgment  affirmed. 

DECLARATION  OF  THE  WILL. 

Emeline  Lane  as  Executrix,  etc.,  Appellant,  v.  Henry  F. 

Lane,  Respondent. 

New  York  Court  op  Appeals,  1884. 

(95  N.  Y.  494.) 

Proceedings  for  probate  of  will  of  Frederick  F.  Lane. 

Appeal. 

Danforth,  J. — A  paper  purporting  to  be  the  last  will  and  testa- 
ment of  Frederick  F.  Lane  was  admitted  to  probate  by  the  surro- 
gate of  Schuyler  County,  but  his  decision  was  reversed  by  the 
Supreme  Court,  and  certain  issues  relating  to  its  execution  and  the 
testamentary  capacity  of  the  testator  were  sent  to  a  jury  for  trial. 
They  have  been  so  answered  as  to  establish  that  the  instrument  in 
question  was  first  read  to  or  by  the  testator ;  that  he  understood  it 
was  his  last  will  and  testament,  and  so  subscribed  the  same  at  the 
end  thereof  in  the  presence  of  two  persons,  viz.  :  S.  B.  H.  Nichols 
and  L.  C.  Wakelee,  who  at  his  request  subscribed  their  names 
thereto  as  attesting  witnesses ;  that  the  testator  at  the  time  was 
fully  competent  to  make  a  will,  and  not  disabled  either  in  respect 
of  his  person,  mind,  or  condition,  being  under  no  restraint  or  un- 


DECLARATION   OF   THE   WILL.  245 

due  influence,  and  of  sound  and  disposing  mind  and  memory ; 
that  the  making  and  executing  of  this  instrument  was  his  free  and 
voluntary  act ;  that  at  the  time  he  "  fully  comprehended  the  effect 
of  his  act  in  so  executing  the  same,  and  that  of  the  subscribing 
witnesses  thereto."  But  to  the  question  whether  "  at  the  time  of 
subscribing  the  paper  he  declared  in  the  presence  of  the  subscribing 
witnesses,  and  each  of  them,  that  the  instrument  so  subscribed  was 
his  last  will  and  testament,"  the  jury  answered,  "  Yes,  as  to  Nichols ; 
no,  as  to  Wakelee." 

The  proponent  upon  a  case  and  exceptions  moved  the  Supreme 
Court  at  General  Term  for  a  new  trial,  and  it  being  denied,  brings 
this  appeal.  It  is  now  stated  in  the  printed  points  of  the  learned 
counsel  for  the  respondent,  that  after  verdict  the  proponent  moved 
the  judge  who  presided  at  the  trial  for  judgment  non  obstante  ver- 
dicto,  or  a  new  trial,  and  was  denied.  lie  claims,  therefore,  that  the 
proponent  should  have  taken  an  appeal  from  that  decision  to  the 
General  Term  instead  of  going  there  with  an  original  motion. 
No  basis  for  this  contention  appears  in  the  record  before  us. 
Therefore,  it  is  not  necessary  to  pass  upon  it.  We  are  of  opinion, 
moreover,  that  the  appellant  is  entitled  to  a  new  trial  upon  the 
ground  that  the  verdict  of  the  jury  in  answer  to  the  question  re- 
ferred to,  was  not  warranted  by  the  evidence.  They  found  that 
the  subscription  by  the  testator  was  at  the  proper  place  (2  K.  S.  63, 
sec.  40,  sul).  l),.and  that  he  subscribed  the  will  in  the  presence  of 
each  of  the  attesting  witnesses  ;  that  each  of  these  witnesses  signed 
his  name  as  a  witness  to  the  execution  of  the  will  at  the  request  of 
the  testator  (sub.  4,  id.),  thus  showingexact  and  formal  compliance 
with  all  statutory  requirements  save  one,  viz.:  that  "the  testator 
at  tlit*  time  of  making  such  subscription  .  .  .  shall  declare  the  in- 
strument so  subscribed  to  be  his  last  will  and  testament "  (sub.  :'., 
id.).  But  upon  the  other  conclusions  of  the  jury,  and  the  uncon- 
tradicted evidence  in  the  record,  we  think  this  question  also  should 
have  been  fully  answered  in  the  affirmative.  It  is  quite  probable 
that  the  jury  were  led  to  their  discriminating  answer  by  a  too  close 

and  exclusive  adherence  to  the  testimony  of  one  witness,  who  said, 

"when "Wakelee  came  in  he  did  not  ask  Mi-.  Lane  if  that  was  his 

last  will  and  testament,  nor  did  Mr.  bane  say  'thai  is  my  last  will 
and  testament;  "  and  to  that  of  Wakelee  himself,  who  said,  k>  I  did 
not  ask  Mr.  Lane   if   that   was   his   la.-t  will   and   testament,  nor  did 


246  EXECUTION. 

Mr.  Lane  say  to  me, '  Yes,  this  is  my  last  will  and  testament.'  "  It 
was  but  negative  evidence,  and  if  true,  was  not  conclusive  as  to  the 
fact  in  controversy.  The  jury  were  also  to  consider  the  conduct 
of  the  testator,  his  acts,  and  the  circumstances  which  he  created  and 
which  surrounded  the  transaction.  Upon  all  these  things  the  pro- 
ponent might  notwithstanding  that  testimony  rely  and  succeed. 

Although  publication  is  as  essential  to  the  validity  of  a  will  as 
its  execution  or  other  prescribed  formality,  it  has  never  been  sup- 
posed that  a  particular,  or  even  any,  form  of  words  was  necessary 
to  effect  it,  and  in  Remsen  v.  Brinckerhoof  (in  the  late  Court  of 
Errors,  26  Wend.  325),  one  of  the  first  cases  arising  after  the  enact- 
ment of  the  statute,  it  was  said  that  by  the  provision  in  question, 
"  the  legislature  only  meant  there  should  be  some  communication 
to  the  witnesses  indicating  that  the  testator  intended  to  give  effect 
to  the  paper  as  his  will,  and  that  any  communication  of  this  idea 
or  to  this  effect  will  meet  the  object  of  the  statute,  that  it  is  enough 
if  in  some  way  or  mode  the  testator  indicates  that  the  instrument 
the  witnesses  are  requested  to  subscribe  as  such  is  intended  or  un- 
derstood by  him  to  be  his  will."  In  the  same  case  the  word  "  de- 
clare "  is  said  to  signify  "  to  make  known,  to  assert  to  others,  to 
show  forth,"  and  this  in  any  manner,  either  "  by  words  or  acts,  in 
writing  or  by  signs";  in  fine,  "that  to  declare  to  a  witness  that  the 
instrument  described  was  the  testator's  will,  must  mean  to  make  it 
at  the  time  distinctly  known  to  him  by  some  assertion,  or  by  clear 
assent  in  words  or  signs."  The  case  itself  is  an  example  and  ex- 
planation of  this  construction.  Probate  was  there  held  impossible, 
because,  as  the  court  say,  "  not  one  word,  or  sign,  or  even  act, 
passed  within  the  hearing  or  presence  of  the  witnesses  at  the  time 
of  the  execution,  tending  to  this  effect."  It  was  therefore  a  case 
where  a  testator,  through  imposition,  might  have  been  induced  to 
execute  a  will  under  pretence  that  it  was  a  paper  of  a  different 
nature.  To  prevent  this  was  the  object  of  the  statutory  require- 
ment. 

The  principle  upon  which  that  decision  rests,  and  the  reasoning 
by  which  it  was  supported,  has  been  invariably  applied  in  this 
court.  (Cotfin  v.  Coffin,  23  N.  Y.  1 ;  Trustees  of  Auburn  Semi- 
nary v.  Calhoun,  25  Id.  422;  Gilbert  v.  Knox,  52  Id.  125; 
Thompson  v.  Seastedt,  6  Thomp.  &  Cook  78 ;  affirmed  sub  nom. 
Thompson  v.  Stevens,  62  K  Y.  634 ;  Rugg  v.  Rugg,  83  Id.  592  ; 


DECLARATION    OF   THE    WILL.  247 

Dack  v.  Dack,  Si  Id.  663 ;  In  re  Pepoon,  91  Id.  255.)  It  is, 
therefore,  to  be  deemed  settled  that  a  substantia]  compliance  with 
the  statute  is  sufficient.  [McCoy  v.  Empire  Warehouse  Co.,  125 
N.  Y.  765.]  Mitchell  v.  Mitchell  (16  Hun  97 ;  affirmed  77  N".  Y. 
596,  cited  by  the  respondent)  recognizes  the  same  principle.  But 
in  that  case  there  was  no  evidence  that  the  testator  signed  the  will 
in  the  presence  of  either  of  the  attesting  witnesses,  and  only  one 
saw  the  signature.  The  court  thought  it  could  not  be  inferred 
from  the  testimony  that  the  testator  acknowledged  the  signature 
to  the  other  as  one  in  fact  made  by  him  ;  but  even  as  to  this  the 
court  was  not  unanimous  in  opinion.  That  case,  also,  arose  under 
a  different  subdivision  of  the  statute  (supra,  sub.  2). 

As  to  the  condition  now  under  consideration,  it  is  well  settled 
that  the  necessary  publication  may  be  discovered  by  circumstances 
as  well  as  words  (Lewis  v.  Lewis,  11  N.  Y.  220),  and  inferred 
from  the  conduct  and  acts  of  the  testator  and  that  of  the  attesting 
witnesses  in  his  presence  (Thompson  v.  Seastedt,  and  other  cases, 
supra),  as  well  as  established  by  their  direct  and  positive  evi- 
dence. Even  a  person  both  deaf  and  dumb  may  by  writing  or 
signs  make  his  will  and  declare  it.  The  testator  in  this  case  was 
in  full  possession  of  all  his  senses.  He  could  both  see  and  hear, 
and  was  not  dumb.  Partial  paralysis  of  the  vocal  organs  pre- 
vented him  from  uttering  words,  but  he  made  sounds  intelligible 
to  those  familiar  with  him,  and  signs  which,  to  some  extent,  all 
could  interpret.  There  was  no  difficulty  with  his  understanding. 
The  uncontradicted  evidence  shows  that  he  set  about  making  his 
will  in  a  serious  and  determined  manner.  He  went  with  his  wife 
and  son  from  his  own  to  the  house  of  the  scrivener,  Nichols,  and 
there,  Nichols  says,  "  bis  wife,  speaking  in  his  presence,  informed 
mi-  that  Mr.  Lane  wanted  me  to  write  bis  will,  and  I  did  so  in  his 
presence."  A.8  the  scrivener  wrote  each  section  be  read  it  aloud 
to  the  testator,  who  nodded  approval  each  time.  While  writing, 
something  was  said  about  a  witness  for  the  will,  and,  says  Nichols, 
••  I    suggested  Wakelee,  and    Lane  assenting,  he   was  sent    for  and 

came."  ....   "I  introduced  Wakelee  to  Lane,  and  informed  him 

that   I  was  writing  Mr.  Lane's  will,  and  we  had  sent    for   him    as  a 
witne88."      This  was    before    the  will  w;is    completed,  and    after    it 

had  occurred   Nichols  finished  writing,  and  then  the  testator  took 
it  and  read   it  himself.     As  this  happened  while  the  will  was  in 


248  EXECUTION. 

preparation,  it  is  obvious  that  Wakelee  was  present  when  it  was 
finished,  and  when  the  last  of  it  was  read  to  the  testator,  and  also 
while  he  himself  read  it.  The  testator  and  both  witnesses  all  sat 
at  one  table  when  the  will  was  subscribed  and  witnessed.  This 
was  done  by  the  testator  immediately  after  reading  it,  and  in  the 
presence  of  each  and  both  witnesses;  they  saw  him  read  the  will 
and  subscribe  it.  He  "  shoved  "  the  will  to  Nichols,  who  signed 
it,  and  then  got  up  and  Wakelee  sat  down  "in  Nichols'  chair," 
and  signed  it.  The  testator  left  the  will  with  Nichols  several 
months,  and  then,  by  his  directions,  he  gave  it  to  Mrs.  Lane. 

From  the  situation  of  the  parties,  and  the  circumstances  sur- 
rounding them,  it  seems  to  us  that  the  jury  were  fully  justified  in 
saying  that  the  testator  made  the  required  declaration  to  Nichols, 
and  we  think  their  verdict  should  have  been  the  same  as  to  Wake- 
lee. They  were  present  and  together  during  both  events  of  exe- 
cuting and  attesting  the  will,  and  the  conduct  of  the  testator  upon 
that  occasion  amounted  to  a  declaration  that  the  instrument  was 
his  will  and  testament.  Such  also  is  the  meaning  of  the  attesta- 
tion clause,  and  this,  upon  such  a  question,  may  be  referred  to 
Brown  v.  Clark  (77  N.  Y.  369) ;  Chaffee  v.  Baptist  Missionary 
Convention  (10  Paige  85).  It  is  not  in  the  usual  form,  but  recites 
that  "  as  witnesses  to  this  last  will  and  testament  of  Frederick  F. 
Lane,  we  have  signed  our  names  ....  by  his  request,  in  his 
presence,  and  in  the  presence  of  each  other."  The  request  covers 
the  act  of  the  parties,  and  embodies  a  description  of  the  instru- 
ment when  declaring  the  character  in  which  the  witnesses  attest 
it.  It  is  as  if  the  testater  had  said,  I  request  you  to  sign  as  wit- 
nesses to  my  will.  Two  facts  are  involved,  a  statement  of  the 
paper  and  a  desire  on  his  part.  Such  declaration  may  also  be  in- 
ferred from  his  conduct.  He  knew  the  paper  was  his  will ;  he 
had  directed  its  preparation  ;  it  was  written  in  his  presence,  read 
to  him,  and  read  by  him.  He  had  desired  Wakelee's  presence  to 
witness  the  will,  and  sitting  by  him,  and  by  the  other  witness 
after  signing  it,  passes  it  to  one  for  signature,  and  sees  first  that 
one  to  whom  he  had  declared  the  paper  to  be  his  will,  and  then 
the  other,  sign  as  attesting  witnesses.  For  what  purpose  and  with 
what  intelligence  this  was  done  the  jury  have  found ;  they  say 
that  at  the  time  of  the  execution  of  the  paper  writing  purporting 
to  be  the  last  will  and  testament  of  Frederick  F.  Lane,  he  fully 


ANIMUS   TESTAXDI.  249 

comprehended  the  effect  of  his  said  act  in  so  subscribing  the  same, 
and  that  {i.e.,  the  effect  of  the  act)  of  the  subscribing  witnesses 
thereto.  They  have  said,  moreover,  that  "  he  then  understood 
that  this  paper  was  his  last  will  and  testament,"  and  that  the  wit- 
nesses subscribed  "  said  paper  purporting  to  be  said  will,  as  attest- 
ing witnesses,  at  the  request  of  the  testator." 

We  find  no  room  for  doubt  or  mistake.  The  testator  knew, 
and  the  witnesses  understood  from  his  acts  and  conduct,  as  he  in- 
tended they  should,  that  the  instrument  then  executed  was  his 
will.  The  statute  upon  this  point  exacts  nothing  more,  and  it  is 
not  denied  by  the  respondent  that  on  every  other  there  was  strict 
compliance  with  its  terms.  We  find  then  that  the  testator  sub- 
scribed the  will  in  the  presence  of  the  witnesses,  made  known  to 
them  its  nature,  and  requested  their  attestation.  On  his  part 
nothing  more  was  required,  and  on  their  part  was  attestation  of 
the  will  at  his  request.  Thus  every  safeguard  prescribed  by  statute 
against  improvidence  and  fraud  was  substantially  observed 

The  order  appealed  from  should,  therefore,  be  reversed,  and  a 
new  trial  granted,  costs  to  abide  the  event. 

All  concur,  except  Rapallo,  J.,  not  voting. 

Ordered  accordingly. 

[Also  McCoy  v.  Empire,  etc.  Co.,  125  K  Y.  765 ;  Denny  v. 
Finney's  Heirs  (Vt.),  12  Atl.  Rep.  108 ;  Matter  of  Voorhis,  125 
K  Y.  765.  In  the  case  of  Gilbert  v.  Knox,  52  K  Y.  125,  the 
draftsman,  who  was  also  a  subscribing  witness,  stated,  in  the  pres- 
ence and  hearing  of  testator  and  the  other  witness,  that  the  paper 
before  them  was  testator's  will,  and  that  testator  wished  them  i<> 
sign  as  witnesses.  The  testator  said  nothing,  but  took  the  will 
after  execution,  and  retained  it.  This  was  held  to  be  a  due  "dec- 
laration" by  testator.] 

ANIMUS    TESTANDI. 

It  is  obvious  that  although  a  paper  is  drawn  np  in  the  usual  form 
and  appears  on  its  face  to  have  been  duly  executed  as  a  will,  if  may, 
neverthele— ,  represent  no  serious  testamentary  intention.  The  tes- 
tator may,  for  instance,  not  have  known,  in  Pact,  what  provisions 
wen-  really  contained  iii  the  paper,  and  may  oot  have  intended  to 
■•lite  a  will  sueh  as  that  in  question.  ( )i\  he  may  have  executed 
it  merely  in  jest.     If  such  a  state  >>\'  facts  appears,  the  execution 


250  EXECUTION. 

lacks  an  element  essential  to  the  validity  of  a  will, — namely,  an 
animus  testandi,  an  intent,  on  testator's  part,  to  make  a  will,  or  the 
given  will.  But  if  all  the  statutory  formalities  have  been  observed, 
the  fact  that  the  will  was  executed  in  jest,  or  for  a  mere  collateral 
use,  should  be  clearly  made  out  in  order  to  warrant  denial  of  pro- 
bate.1 And  so  far  as  concerns  knowledge  on  testator's  part  of  the 
contents  of  the  will  executed  by  him,  this  will  be  presumed  unless 
•facts  are  shown,  such,  for  instance,  as  blindness,  which  render  it 
incumbent  on  the  proponent  to  show,  in  some  sufficient  manner, 
that  the  testator  was  truly  informed  of  the  provisions. 


ABSENCE  OF  ANIMUS  TESTANDI. 
Lister  and  Others  v.  Smith  and  Others. 

English  Court  of  Probate,  1863. 
(3  Sw.  &  Tr.  282.) 

In  this  case  the  plaintiffs,  as  executors,  propounded  a  will  of 
Ralph  Wheeldon  Smith,  dated  October,  1858,  and  a  codicil  thereto, 
dated  27th  of  July,  1860.  Various  parties  were  cited  (s.  c.  3  Sw. 
&  Tr.  53). 

Sir  J.  P.  Wilde  made  the  following  remarks  to  the  jury  in  sum- 
ming up :  The  facts  of  the  case  lie  in  a  very  small  compass,  but 
the  question  is  of  great  importance.  It  tends  to  make  wills  of  any 
of  us  very  insecure,  if  a  regularly  executed  document,  purporting 
on  the  face  of  it  to  be  testamentary,  can  be  set  aside  by  evidence 
of  the  sort  you  have  just  heard  as  to  the  intention  of  the  testator, 
that  such  a  paper  should  have  no  testamentary  effect ;  but  I  think 
I  must  leave  it  to  you  to  say  whether,  upon  the  evidence,  the  de- 
ceased signed  the  codicil  intending  it  to  be  an  effective  instrument, 
or  whether  he  signed  it  as  a  mere  sham.  I  must  tell  you  that  the 
presumption  is  that  he  intended  it  to  be  an  effective  instrument, 
and  it  is  the  duty  of  those  who  say  it  was  not  so  intended,  to  make 
out  that  proposition  very  clearly. 

The  jury  found  by  their  verdict,  that  the  deceased  did  not  sign 

1  Lister  v.  Smith,  3  Sw.  &  Tr.  282  (given  post);  Nichols  v.  Nichols,  2  Phillim. 
180  (given  post).  The  more  detailed  and  strict  the  statutory  requirements, 
the  less,  of  course,  "will  such  questions  be  likely  to  arise. 


ABSENCE   OF   ANIMUS  TESTAXDI.  251 

the  paper  intending  it  to  have  any  testamentary  operation,  and  the 
court  reserved  any  question  as  to  the  effect  of  this  finding  of  fact 
upon  the  codicil  and  as  to  costs. 

(Dec.  22.)  Sir  J.  P.  Wilde— The  case  has  been  very  well 
argued  by  Dr.  Tristram,  and  the  court  is  much  indebted  to  him 
for  the  authorities  which  he  has  collected.  It  is  a  most  remarkable 
case,  and  one  which,  since  the  trial,  has  given  me  some  anxiety. 

The  question  raised  is  whether  a  certain  codicil  is  or  is  not  en- 
titled to  probate.  It  is  regularly  executed  by  the  testator,  but 
evidence  was  given  at  the  trial  that  the  testator  never  intended  it 
seriously  to  operate  as  a  testamentary  document.  It  was  proved 
before  the  jury  that  the  testator  wished  one  of  his  family  to  give 
up  a  house  which  she  then  occupied,  and  that  to  force  her  to  do  so, 
he  made  pretence  of  revoking  by  codicil  a  bequest  which  he  had 
made  by  will  in  favour  of  this  woman's  daughter,  and  that  the  paper 
in  question  was  made  with  that  sole  object;  that  the  testator  gave 
his  attorney  instructions  to  prepare  it  with  that  intention,  and  in- 
formed him  before  it  was  drawn  that  he  never  wished  it  to  operate 
at  all.  Further,  that  the  attorney  pointed  out  the  folly  of  exe- 
cuting such  an  instrument,  and  would  have  nothing  to  do  with  its 
execution.  It  was,  however,  executed  in  the  presence  of  the  testa- 
tor's brother,  to  whom  it  was  then  given  by  the  testator  with  ex- 
press directions  that  he  was  not  to  part  with  it,  and  that  it  was  in 
no  event  to  operate,  or  to  revoke  the  bequest  made  in  his  will, 
but  to  be  used  only  in  the  manner  above  described.  Similar  dec- 
larations were  made  by  the  testator  at  the  moment  of  its  execution. 

A  codicil  thus  duly  executed  in  point  of  form,  and  attested  by 
twowitnesses,  has  been  directly  impeached  byparol  testimony.  It 
bears  all  the  appearance  on  the  face  of  it  of  a  regular  testamentary 
act  ;  but  on  the  evidence  it  has  been  found  by  the  jury  not  to  bave 
been  intended  as  snch  by  the  testator.  The  momentous  conse- 
quence  of  permitting  parol  evidence  thus  to  outweigh  the  sanction 

of  a  solemn  act  are  obvious.  It  has  a  tendency  to  place  all  wills 
at  the  mercy  of  a  parol  story  that   the  testator  did  not  mean  what 

1.,.  said.  <)n  the  other  hand,  if  the  fad  is  plainly  and  conclusively 
made  out,  thai  the  paper  which  appears  to  be  the  record  of  a  testa- 
mentary act,  was  in  reality  the  offspring  of  a  jest,  or  the  resull  "I 
contrivance  to  effeel  some  collateral  object,  and  never  seriously  in- 
tended as  a  disposition  of  property,  it  is  not  reasonable  that  the 


252  EXECUTION. 

court  should  turn  it  into  an  effective  instrument.  And  such  no 
doubt  is  the  law.  There  must  be  the  animus  testandi.  In  Nichols 
v.  Nichols,  2  Phill.  ISO  [given  post],  the  court  refused  probate  to 
a  will  regularly  executed,  which  was  proved  to  have  been  intended 
only  as  a  specimen  of  the  brevity  of  expression  of  which  a  will  was 
capable.  And  in  Trevelyan  v.  Trevelyan,  1  Phill.  149,  the  court  ad- 
mitted«cvidence,  and  entertained  the  question  whether  the  document 
was  seriouslv  intended  or  not.  In  both  cases  the  court  held  that 
evidence  was  admissible  of  the  animus  testandi.  And  to  the  same 
effect  is  the  authority  of  Swinb.  pt.  1,  s.  3 ;  and  of  Shep.  Touch. 
404.  The  analogies  of  the  common  law  point  the  same  way.  A 
deed  delivered  as  an  escrow,  though  regularly  executed,  is  not  bind- 
ing. And  in  Pym  v.  Campbell,  6  Ell.  and  Bl.,  the  Queen's  Bench 
held  that  a  regular  agreement  signed  by  the  party  might  be  avoided 
by  parol  evidence  that  at  the  time  of  its  signature  it  was  under- 
stood that  it  should  not  operate  unless  a  certain  event  happened. 
There  can  therefore  be  no  doubt  of  the  result  in  point  of  law  if 
the  fact  is  once  established.  But  here  I  must  remark  that  the 
court  ought  not,  I  think,  to  permit  the  fact  to  be  taken  as  estab- 
lished, unless  the  evidence  is  very  cogent  and  conclusive.  It  is  a 
misfortune  attending  the  determination  of  fact  by  a  jury,  that  their 
verdict  recognizes  and  expresses  no  degree  of  clearness  in  proof. 
They  are  sworn  to  find  one  way  or  the  other,  and  they  do  so  some- 
times on  proof  amounting  almost  to  demonstration,  at  others  on  a 
mere  balance  of  testimony ;  sometimes  upon  written  admissions 
and  independent  facts  proved  by  disinterested  parties,  sometimes 
on  conflicting  oaths  or  a  nice  preponderance  of  credibility.  And 
it  is  difficult  to  impress  them  with  the  enormous  weight  which 
attaches  to  the  document  itself  as  evidence  of  the  animus  with 
which  it  was  made.  This  weight  it  becomes  the  court  to  appreciate, 
and  to  guard  with  jealousy  the  sanction  of  a  solemn  act. 

In  the  present  case,  however,  the  court  finds  the  evidence  so 
cogent,  that  it  is  prepared  to  act  on  the  finding  of  the  jury  that 
the  codicil  was  executed  as  a  sham  and  a  pretence,  never  seriously 
intended  as  a  paper  of  testamentary  operation.  But  I  am  far  from 
saying  that  the  court  will  in  all  cases  repudiate  a  testamentary 
paper  simply  because  a  jury  can  be  induced  to  find  that  it  was  not 
intended  to  operate  as  such.  The  character  and  nature  of  the  evi- 
dence must  be  considered,  as  well  as  the  result  at  which  a  jury  have 


ABSENCE   OF   ANIMUS   TESTAXDT.  253 

arrived,  and  the  court  must  be  satisfied  that  it  is  sufficiently  cogent 
to  its  end.  Iu  this  case  the  court  is  so  satisfied,  and  it  therefore 
pronounces  for  the  will,  and  against  the  codicil ;  the  costs  to  be 
paid  out  of  the  estate. 

[In  Sewell  v.  Slingluff,  57  Md.  537,  the  will,  absolute  on  its  face, 
was  duly  executed,  and  was  intended,  as  shown  by  the  oral  decla- 
rations of  testatrix,  to  take  effect  on  one  contingency,  but  on  another 
contingency  not  to  take  effect.  ISTo  such  oral  arrangement  can  be 
shown,  and  such  a  will  takes  effect  in  any  event  upon  testator's 
death.] 

ABSENCE  OF  ANIMUS  TESTANDI. 
Nichols  and  Nichols  by  their  guardian  v.  Nichols. 

Prerogative  Court  op  Canterbury,  1814. 
(2  Phillim.  180.) 

Application  for  probate. 

The  widow  opposed  the  validity  of  the  testamentary  paper  and 
prayed  the  court  to  pronounce  for  an  intestacy. 

Judgment. 

Sir  John  Nicholl: 

This  is  a  case  under  singular  circumstances — the  deceased  died 
in  January,  1813,  leaving  a  widow,  and  two  children  by  a  former 
wife — the  will  is  in  these  terms: 

"I  leave  my  property  between  my  children;  I  hope  they  will 
be  virtuous  and  independent;  that  they  will  worship  God,  and 
not  black  coats. 

"July  30,  1803.  "Thomas  Kictols. 

"  Witness  Thomas  King." 

It  is  proved  and  admitted  that  this  paper  was  written  and  signed 

by  the  deceased,  and  that  he  was  of  sound  mind  at  the  time;  but 
Thomas  King,a  aubscribed  witness,  gives  the  following  accounl  oi 
the  transaction  : 

"The  deponenl  Ie  steward  to  Sir  Charles  Mill,  whose  solicitor 
the  deceased  was     he  know  him   intimately  for  twenty  yeare 
when  they  had  any  business  to  transacl  together,  it  was  their  cus- 
tom to  dine  al   the  house  of  each  other.    On  the  30th  of  July, 


25)4  EXECUTION. 

1S03,  the  deceased  dined  with  the  deponent — after  dinner  they 
adjourned,  as  usual,  to  the  deponent's  book-room,  where  they  drank 
their  wine,  which  never  exceeded  a  pint  each,  with,  perhaps,  a 
glass  or  two  of  white  wine.  The  deponent  and  the  deceased  used 
to  talk  familiarly  with  him  on  many  subjects — he  was  in  the  habit 
of  ridiculing  the  tautology  of  lawyers,  who,  he  said,  employed  a 
vast  number  of  unnecessary  words — that  having  finished  their  wine, 
the  deponent  took  from  a  drawer  a  paper  which  he  had  drawn  up 
as  his  will ;  and,  shewing  it  to  the  deceased,  said  something  ridicul- 
ing lawyers  spinning  out  papers,  and  asked  him  if  it  was  not  as 
good  a  will  as  if  it  had  been  spun  out  to  a  great  length  by  a  law- 
yer— the  deceased  replied,  not  only  a  valid  will,  but  a  devilish 
good  one ;  and,  asking  for  pen  and  ink,  took  a  sheet  of  paper,  and 
writing  the  paper  propounded,  threw  it  towards  the  deponent, 
saying,  very  carelessly,  there,  that  is  as  good  a  will  as  I  shall 
probably  ever  make.1  These  he  recollects  to  have  been  the  very 
words  spoken — he  did  not  request  the  deponent  to  take  care  of  the 
paper,  or  say  another  word  about  it— or,  from  that  time  to  his 
death,  ever  allude  to  it — and  the  deponent  verily  believed  that  he 
never  recollected  that  such  a  paper  was  in  existence — a  very  short 
time  afterwards  the  deceased  shook  hands  with  the  deponent, 
and  went  away,  leaving  the  paper  on  the  table.  When  the  de- 
ceased was  gone,  the  deponent  wrote  his  name  as  witness  to  the 
signature  (he  was  not  requested  by  the  deceased  so  to  do) ;  he 
then  folded  up  the  paper,  wrote  on  the  back  '  the  will  of  Thomas 
Nichols,  Esq.,  of  Southampton,  July  30,  1803 ';  and  put  it  into  his 
iron  safe,  where  it  remained,  with  many  other  loose  papers,  till 
after  the  deceased's  death.  The  deponent  does  not  believe  that 
the  deceased,  when  he  wrote  the  paper,  intended  to  make  his  will, 
or  that  such  paper  should  ever  operate  as  such ;  but  he  always 
considered,  and  does  still  think,  that  it  was  written  without  any 
other  view  than  in  imitation  of  the  paper  the  deponent  had  so 
shewn  him — a  copy  of  which  he  annexed  to  his  deposition,  and 
to  shew  the  deponent  he  could  exceed  him  in  brevity — and  the 
deponent  is  confirmed  in  this  opinion  by  the  practice  of  the  de- 
ceased on  other  occasions ;    the  deponent  being  in  the  habit  of 

'  At  the  date  of  this  will,  and  long  afterward,  wills  of  personal  property,  very 
informal  in  point  of  execution,  were  often  allowed,  in  England,  attestation  and 
signing  by  witnesses  not  being  essential.     1  Wms.  on  Exrs.  84,  85. 


ABSEXCE   OF  ANIMUS  TESTANDl.  255 

drawing  specimens  of  leases,  and  other  instruments,  wherein  very 
few  words  were  used,  which  he  shewed  to  the  deceased ;  and  he, 
upon  such  occasions,  uniformly  wrote  others  still  shorter,  by  way 
of  shewing  that  he  could  exceed  him  in  brevity.  The  deponent 
never  considered  the  paper  as  the  deceased's  will,  but  as  the  de- 
ceased's specimen  of  a  short  will ;  and  as  such  he  signed  his  name 
as  a  witness  to  it,  and  endorsed  it,  and  put  it  in  his  iron  safe,  lie 
further  saith,  that  his  intimacy  with  the  deceased  continued  till 
his  death  in  January  last — that,  during  his  illness,  he  visited  him 
about  once  a  week  for  five  weeks  together — upon  those  occasions, 
not  considering  the  aforesaid  paper  as  intended  as  a  will,  and  un- 
derstanding from  the  deceased  that  he  had  made  no  will,  he  was 
very  urgent  with  him  to  make  a  will — the  deceased's  answer  to 
such  application  being,  that  he  did  not  know  but  that  the  law  would 
make  a  better  will,  or  as  good  a  will,  for  him  as  he  could  make — 
but  the  deponent  and  others  having  pressed  him  to  make  a  will, 
the  deceased  did  at  length,  shortly  before  his  death,  say,  that  when 
lie  got  a  little  better  he  would,  to  satisfy  his  friends,  make  a  will ; 
but  this  he  did  not  live  to  do — he  grew  worse  daily — that  the  de- 
ponent never  alluded  to  the  paper  writing,  for  he  had  himself  for- 
gotten that  such  a  paper  was  in  existence." 

The  same  witness,  in  answer  to  an  interrogatory,  says,  "  that  a 
few  days  after  the  death  of  the  deceased,  Sarah  Nichols,  his  widow, 
told  the  respondent  she  could  find  no  will;  and  asked  nim,  as  he 
was  the  confidential  friend  of  her  husband,  if  he  had  left  a  will  in 
hi-  hands.  He  replied,  No,  he  never  left  any  will  with  me;  but 
added  that,  if  it  would  give  her  any  satisfaction,  he  would  search 
his  papers,  which  she  requested  he  would  do,  saving,  that  she  con- 
cluded from  the  intimacy  that  subsisted  between  them,  if  her  hus- 
band had  left  any  will,  with  any  one,  it  would  he  with  the  re 
spondent.  The  respondent  had  then  no  thought  of  the  paper  in 
question  ;  nor  did  the  circumstances  of  the  same  having  been  writ- 
ten occur  to  him.  till,  on  turning  out  the  various  papers  that  were 
in  the  safe,  lie  found  it  there — that  the  respondent  thought  BO 
lightly  of  it  when  he  went  to  Sarah  Nichols,  and  shewed  it  her, 
that    lie   slid,   this    is    all    I    have   got,  and  you  may  put   it  into  the 

fire.  The  respondenl  doc-  verily  believe  that  the  deceased  de- 
parted tlii-  life  without  tin'  least  recollection  of  the  paper  being 
in  existence  -thai   the  deceased  and   his  wife  lived  on  the  1- 


256  EXECUTION. 

terms  together,  and  the  greatest  love  and  affection  subsisted  be« 
tween  them." 

This  is  the  account  given  by  the  only  witness,  whose  name  is 
subscribed  to  the  paper;  and  if  this  evidence  can  be  received,  and 
is  to  be  credited,  this  is  not  the  will  of  the  deceased,  for  it  wants 
the  great  requisite,  the  animus  testandi  ;  it  was  not  written  with 
the  mind  and  intention  to  make  a  will.  A  question  has  been  made 
whether  this  evidence  can  De  received.  I  am  of  opinion  that  it 
can  and  must  be  received ;  it  is  the  evidence  of  the  attesting  wit- 
ness, who  must  be  produced,  and  whose  testimony  is  common  to 
both  parties.  What  credit  may  be  due  to  it  is  another  question. 
A  witness  attests  a  will  for  the  purpose  of  giving  authenticity  to 
the  factum  of  the  instrument:  the  animus  testandi  is  the  very 
point  into  which  the  Court  of  Probate  is  to  enquire — the  mere  act 
of  witnessing  or  signing  does  not  exclude,  of  necessity,  the  absence 
of  the  animus  testandi  any  more  than  the  mere  act  of  cancellation 
excludes  of  necessity  the  absence  of  the  animus  revocandi.  It 
may  have  been  signed  under  duress,  or  under  other  circumstances 
when  there  was  no  intention  to  make  a  testamentary  disposition. 

The  evidence  is  admissible,  but  is  certainly  to  be  received  with 
great  caution,  the  paper  being  dispositive ;  and  the  witness  having 
signed  it  must  be  heard  with  jealousy  to  depose  against  the  effect 
of  his  own  act — it  is  true  the  attestation  clause  is  not  in  the  usual 
form ;  it  is  merely  the  word  "  witness ";  but  still  that  infers  an 
attestation  of  the  act  of  the  deceased ;  and  the  witness  must  be 
carefully  heard  by  the  court. 

The  evidence  then  being  admissible,  the  next  question  is,  Does 
the  court  believe  this  account  ?  The  witness  is  in  a  respectable 
situation  in  life;  wholly  unimpeached  in  credit  and  character;  the 
confidential  friend  of  the  deceased ;  and  no  possible  inducement  is 
suggested  why  he  should  declare  upon  oath  a  false  account  of  the 
transaction — the  account  he  gives,  though  whimsical,  is  neither 
unnatural  nor  improbable ;  the  internal  evidence  of  the  paper 
stronsrlv  corroborates  it,  as  do  also  the  extrinsic  circumstances — he 
says  the  deceased  wrote  it  in  order  to  show  in  how  few  words  a 
will  might  be  written — there  is  something  of  levity  in  the  expres- 
sion, "Worship  God,  and  not  black  coats":  it  is  in  imitation  of 
one  written  by  the  witness ;  his  is  in  these  words : 

1  give  and  devise  all  my  property,  real  and  personal,  to  Mary, 


ABSENCE   OF  ANIMUS    TESTANDI.  25? 

my  wife,  to  be  divided  by  her,  as  she  shall  think  proper,  between 
all  my  children,  either  in  Tier  lifetime  or  by  will  (reserving  enough 
for  her  own  comforts).  I  hope  my  children  will  obey  thevr 
mother,  love  each  other,  and  be  pious  and  virtuous;  that  they 
worship  God  and  not  man,  nor  ever  practise  the  trade  of  a 
butcher,  nor  ever  accept  of  any  place  in  the  navy  or  army.  But 
they  will  endeavour  to  plant  and  extend  happiness,  to  raise  cot- 
tages for  industry  and  honesty,  and  make  the  desert  smile  ic it 'h 
plenty  and  innocence;  that  they  will  despise  only  those  who 
monopolize  the  earth  for  the  gratification  of  their  own  luxury  and 
pride;  and  that  they  will  look  up  to  none  as  their  superior  but 
those  only  who  exceed  them  in  good  works  ;  and  never  treat  any 
of  God's  en  atures  with  contempt  but  the  proud  and  profligate  ; 
and  never  bend  their  knee  but  to  thevr  God.  This  is  my  will; 
and  I  hereby  appoint  my  wife  sole  executrix  thereof.  In  'wit- 
ness, <&c,  &c, 

Signed,  Thomas  King. 

Upon  comparing  the  two  instruments,  I  think  the  one  a  com- 
pressed imitation  of  the  other— the  admonitory  part  in  the  one 
occupies  twenty  lines ;  in  the  other  the  same  idea  is  given  in  more 
concise  words.  It  is  an  extremely  strong  circumstance  that  it 
makes  no  alteration  in  the  disposition  the  law  would  have  made  of 
his  property.  For  what  purpose  could  lie  have  intended  this 
paper?  In  it  there  is  no  legacy,  no  executor,  no  guardian  to  his 
children— this  is  a  strong  confirmation  that  it  was  not  written 
animo  testandi,  but  for  the  purpose  mentioned  by  Mr.  King  - 
subsequent  circumstances  still  more  confirm  this;  the  deceased 
afterwards   married      he  lived  on  terms  of  affection  with  his  wile. 

and  he  said  he  hud  no  will,  that  tin-  law  would  mah  u  good  will 
for  him  so  that  it  was  his  intention  that  his  widow  should  possess, 
after  his  death,  tin;  provision  which  the  law  would  give  her ; 
during  oone  of  these  conversations  does  he  make  any  allusion  t<> 
the  existence  of  tlii-  paper    his  forgetting  it  would  not  operate  as 

a  revocation;    hut    it   [fi  a  circumstance   to  shew  th.it    lie   originally 

never  intended  it  a-  a  testamentary  paper.    There  is  little  doubt 

that  when  he  threw  it  acrOS8  tin'  table,  he  meant  it  should  he  put 
into  the  tire. 

With  all  the  possible  Caution  thai   the  court  can  exercise  where  a 

witness  is  deposing  againsl  his  own  act,  I  am  jrel  Eullv  satisfied  m 

17 


258  EXECUTION. 

my  mind  and  conscience  that  the  deceased  never  intended  this  as 
his  will ;  I,  therefore,  pronounce  against  it ;  and  decree  administra- 
tion to  the  widow,  her  husband  having  died  intestate. 

TESTATOR    MUST    UNDERSTAND    THE    WILL.— PRESUMPTION. 

maxwell  v.  Hill. 

Tennessee  Supreme  Court,  1891. 
(89  Tenn.  584.) 

Appeal  from  Circuit  Court. 

Caldwell,  J. — This  is  a  contested  will  case.  In  1877,  Elroy  A. 
Hill,  wife  of  C.  A.  Hill,  died  at  her  home  in  Rutherford  County. 
At  the  time  of  her  death  she  owned  four  tracts  of  land,  and  some 
little  personal  property.  She  died  without  child,  or  representative 
of  a  child,  and  without  father  or  mother ;  but  left,  surviving, 
several  brothers  and  sisters,  and  her  husband.  At  the  February 
term,  1878,  of  the  county  court  of  Rutherford  County,  her 
husband,  C.  A.  Hill,  presented  a  paper  writing,  which  was  admitted 
to  probate  in  common  form  as  the  last  will  and  testament  of  Elroy 
A.  Hill,  deceased.  By  this  instrument,  some  small  bequests,  a 
saddle,  and  her  wearing  apparel,  were  given  to  her  sister  Sarah 
Maxwell  and  to  her  sister  Eliza  Haynes ;  and  the  residue  of  her 
personal  estate  and  all  her  lands  were  given  to  her  husband  abso- 
lutely. In  April,  1888,  Sarah  Maxwell,  a  sister  of  Elroy  A.  Hill, 
filed  her  petition  in  the  county  court  to  have  the  probate  set 
aside.  C.  A.  Hill  answered  the  petition  ;  and,  proper  order  being 
made,  the  alleged  will  and  proceedings  thereon  were  certified  to 
the  circuit  court,  where  issue  of  devisavit  vel  non  was  made  up 
and  tried  by  court  and  jury.  Verdict  and  judgment  were  for  the 
will ;  and,  motion  for  new  trial  being  overruled,  Sarah  Maxwell 
appealed  in  error. 

The  subscribing  witnesses  to  the  paper  propounded  as  the  will 
were  W.  J.  Hill  and  O.  W.  Hill,  brothers  of  C.  A.  Hill.  The 
former  of  these  died  before  the  trial  in  the  circuit  court,  and  be- 
cause of  his  death,  his  handwriting  and  signature  were  properly 
allowed  to  be  proved  by  other  witnesses.  Mill  &  V.  Code,  sees. 
3012,  3018  ;  Caruth  Lawsuit  (Martin's  Ed.),  sec.  612  ;  Stump  v. 
Hughes,  5  Hayw.  (Tenn.)  93  ;  Den  v.  Mayfield,  Id.  121  ;  Crockett 
v.  Crocket,  Meigs  95  ;    Jones  v.  Arterburn,  11  Humph.  97;  Har- 


TESTATOR  MUST  UNDERSTAND  THE  WILL. — PRESUMPTION.  2.")9 

rel  v.  Ward,  2  Sneed  611 ;  Alexander  v.  Beadle,  7  Cold.  126. 
C.  A.  Hill,  the  principal  beneficiary  under  the  alleged  will,  also  died 
before  the  trial,  intestate,  and  without  children  or  child,  or  repre- 
sentative of  either.  O.  W.  Hill  is  one  of  his  heirs ;  hence,  when 
he  went  on  the  stand  to  prove  the  execution  of  the  will  as  one  of 
the  subscribing  witnesses,  his  evidence  was  objected  to  by  the  con- 
testant, on  the  ground  of  interest.  His  evidence  was  admitted, 
and  the  action  of  the  trial  judge  in  that  behalf  is  here  assigned  as 
error.  The  witness  was  competent,  and  his  evidence  was  properly 
admitted.  The  statute  relating  to  this  question  provides  that  "  no 
last  will  or  testament  shall  be  good  or  sufficient  to  convey  or  give 
an  estate  in  lands,  unless  written  in  the  testator's  life-time,  and 
signed  by  him,  or  by  some  other  person  in  his  presence,  and  by  his 
direction,  and  subscribed  in  his  presence  by  two  witnesses,  at  least, 
mither  of  whom  is  interested  in  the  devise  of  said  lands."  Mill 
&  V.  Code,  sec.  3003.  O.  W.  Hill  was  manifestly  not  "  interested 
in  the  devise  of"  the  lands  of  the  testatrix,  though  made  to  his 
brother.  To  have  been  so,  in  the  sense  of  the  statute,  he  must  have 
been  a  beneficiary  under  the  devise.  He  had  no  interest  in  the 
devise  at  the  time  he  witnessed  the  will,  nor  has  he  any  now.  His 
interest  in  the  land  now  is  as  heir  of  his  brother,  and  not  as  devisee 
under  the  will.  At  that  time  he  was  not  even  heir  of  his  brother, 
for  no  one  can  be  heir  of  a  living  person.  This  construction  of  the 
statute  is  in  accord  with  Allen  v.  Allen,  2  Overt.  172,  and  Walker 
v.  Skeene,  3  Head  1,  5. 

p]lroy  A.  Hill  was  an  illiterate  person,  and  made  her  mark  to 
the  supposed  will.  At  the  time  it  was  executed,  she  was  about  55 
years  of  age,  and  in  rather  feeble  health.  Her  husband  was  both 
draftsman  of  the  instrument  and  almost  the  sole  beneficiary  there- 
under. A.8  applicable  to  these  facts,  in  connection  with  what 
occurred  when  the  paper  was  executed,  and  before  and  afterwards, 
the  court  instructed  the  jury  as  follows:  "You  must  further  be 
satisfied  thai  -lie  was  fully  apprised  of  the  contents  of  the  will  ; 
that  it  was  read  over  to  her,  and  that  she  understood  the  same; 
also  thai  it  was  her  free  and  voluntary  act,  (\-a'  from  fraud  or 
coercion  on  the  pari  of  her  husband.  You  must  also  find  thai  she 
was  of  sound  mind  ami  disposing  memory  at  the  time  oi  making 

the  will;  thai  -he  knew  her  property,  her  relatives,  and  those 
having  claims  to  her  bounty  ;   and  had  mind  to  intelligently  dispO  e 


260  EXECUTION. 

of  said  property.  "When  a  beneficiary  under  a  will  is  the  drafts- 
man of  the  will,  it  is  a  strong  circumstance  against  it,  and  it 
devolves  upon  the  plaintiff  to  show  that  everything  was  fair  and 
free  from  fraud  and  undue  influence.1  When  a  party  makes  his  or 
her  mark  to  a  will,  it  is  not  enough  to  show  that  the  will  was  duly 
executed,  but  it  must  also  be  shown  that  the  testator  was  fully  cog- 
nizant of  the  contents  of  the  will,  and  approved  it."  Appellant 
assigns  error  on  this  charge,  and  insists  that  it  is  fatally  defective, 
because  the  jury  were  not  told  that  "  information  acquired  from 
the  draftsman  in  such  a  case  as  this  is  not  sufficient,"  and  that, 
under  the  circumstances  of  this  case,  the  proof  should  be  equivalent 
to  having  heard  the  will  read  over  by  a  disinterested  person.  In 
ordinary  cases,  when  the  testator  is  shown  to  be  of  competent 
capacity,  and  there  are  no  circumstances  of  suspicion  surrounding 
the  case,  it  is  not  necessary  to  establish  by  proof  that  he  had 
knowledge  of  the  contents  of  the  will.  Such  knowledge  will  be 
presumed  where  formal  proof  of  execution  and  testable  mind  are 
shown,  and  no  opposing  facts  appear.  Cox  v.  Cox,  4  Sneed  87 ; 
Bartee  v.  Thompson,  8  Baxt.  513 ;  Patton  v.  Allison,  7  Humph. 
332  ;  Rutland  v.  Gleaves,  1  Swan  200 ;  1  Greenl.  Ev.,  sec.  33 ;  1 
Jarm.  Wills,  46.  But  where  the  person  making  the  will  is  so 
illiterate  as  to  make  his  mark,  and  the  draftsman  of  the  will  is  the 
principal  beneficiary,  the  presumption  of  knowledge  is  overcome, 
and  more  proof  is  required  to  establish  the  will.  Such  circum- 
stances cast  a  suspicion  on  the  will,  and  it  becomes  incumbent  on 
the  proponent  to  remove  that  suspicion  by  showing  affirmatively 
that  the  testator  fully  understood  the  provisions  of  the  will,  and 
fully  approved  them.  Such  is  the  rule  deducible  from  the  follow- 
ing authorities  :  Patton  v.  Allison,  7  Humph.  332-335,  and  cita- 
tions ;  Rutland  v.  Gleaves,  1  Swan  200 ;  Bartee  v.  Thompson,  8 
Baxt.  513  ;  Key  v.  Holloway,  7  Baxt.  575  ;  Wisener  v.  Maupin, 
2  Baxt.  342 ;  Cox  v.  Cox,  4  Sneed  87 ;  Watterson  v.  Watterson, 
1  Head  2.  In  Rutland  v.  Gleaves,  supra,  the  testatrix  was  old 
and  feeble,  and  had  for  several  vears  been  addicted  to  the  excessive 
use  of  opium  and  ardent  spirits.  The  will,  which  was  complicated 
in  its  provisions,  was  read  to  her,  partly  by  the  witness,  and  the 
balance  by  another  person,  who  was  the  principal  legatee,  after 
which  the  latter  held  her  hand,  and  she  made  her  mark  to  it. 

1  Compare,  on  this  point,  Post  v.  Mason,  given  ante. 


TESTATOR  MUST  UNDERSTAND  THE  WILL. — PRESUMPTION.  ^61 

"  The  court,  among  other  matters  not  excepted  to,  instructed 
the  jury  that  if  they  believed  the  will  was  read  to  the  testatrix  cor- 
rectly, and  that  she  was  of  sound  mind,  the  legal  presumption 
would  be  that  she  understood  its  contents."  This  instruction  was 
held  to  be  erroneous,  because  it  precluded  the  jury  from  consider- 
ing all  the  facts  and  determining  from  them  whether  or  not  the 
testatrix  understood  the  contents  of  the  will.  1  Swan,  200.  In 
the  7  Humph,  case  the  court  told  the  jury  "that,  when  a  party 
writes  a  will  in  his  own  favor,  this  circumstance  should  awaken 
the  vigilance  and  jealousy  of  the  jury  to  see  whether  a  knowledge 
of  its  contents  was  brought  home  to  the  deceased,  for  in  such  case; 
it  is  incumbent  on  the  propounder  to  show  that  the  contents 
were  known  to  the  testator."  This  was  held  to  be  a  correct  state- 
ment of  the  law.  7  Humph.  332.  In  Cox  v.  Cox  the  testatrix 
was  shown  to  be  so  illiterate  that  she  could  neither  read  nor  write. 
She  was  also  very  old  when  the  will  was  executed,  and  was  by  the 
witness  -eon  to  "  make  her  mark  "  to  it.  As  to  the  rule  of  evidence 
in  such  a  case  this  court  said  :  "The  existence  of  the  fact  that  the 
testator  cannot  read,  the  law  regards  as  a  circumstance  not  only 
sufficient  to  excite  suspicion,  but  to  repel  the  presumption  of 
knowledge  of  the  contents  of  the  will.  It  may  be  of  more  or  less 
force,  according  to  the  facts  of  each  particular  case,  and  the  degree 
of  proof  requisite  to  remove  such  suspicion,  and  to  establish  the 
knowledge  of  the  testator,  must  necessarily  depend  upon  the  cir- 
cumstances of  each  case.  All  that  in  reason  can  be  necessary  is 
that  it  .-hall  be  made  to  appear,  to  the  entire  satisfaction  of  the  jury, 
that  the  testator  fully  understood  and  assented  to  the  provisions  of 
the  will."'  4  Sneed,  88.  In  the  Watterson  case  the  testatrix  was 
unable  to  write  or  read  writing.  She  had  two  sons.  One  of  these 
wrote  the  will  by  which  almost  her  entire  estate  was  given  to  him- 
self. Judge  Caeuthers,  delivering  the  opinion  of  the  court,  said 
there  were  two  ground-  of  suspicion  and  distrust:  The  illiteracy 
of  the  testatrix;  and  the  fact  that  the  will  was  written  by  the 
principal  legatee.      And  in  the  conclusion  of  his  discussion  of  the 

charge  of  the  trial  judge,  with  respect  to  the  evidence  required  in 

BUCh    a    ca86,    he   OSes   this    language:    "  Bui    we   think    there   is   DO 

inflexible  rule  of  law  that  the  knowledge  of  the  contents,  which  is 
required  to  he  established  in  tin'  case  of  persons  who  cannot  read, 

or  where  the   writer  of   the   will   get.-  a  large  benefil  under  it,  can 


262  EXECUTION. 

only  be  derived  from  hearing  the  will  read,  to  be  proved  either  by 
direct  or  circumstantial  evidence ;  but  all  that  is  necessary  is  that 
it  must  appear  to  the  full  and  entire  satisfaction  of  the  jury 
that  the  testator  fully  understood  and  fully  assented  to  the  pro- 
visions of  the  will.  This  fact,  as  to  the  kind  and  description  of 
proof,  may  be  made  out  like  any  other  disputed  fact.  But,  in 
case  of  this  description,  the  strength  and  conclusive  character  of  it 
must  depend  upon  the  degree  of  suspicion  which  the  circumstances 
are  calculated  to  excite,  and  should  be  strong  and  convincing, — 
equivalent,  at  least,  to  the  reading  of  the  will,  or  hearing  it  cor- 
rectly read."  1  Head,  6,  7.  None  of  these  cases,  nor  any  other 
authorities  of  which  we  are  aware,  warrant  the  instruction  which 
appellant  insists  should  have  been  given.  The  headnote  in  the 
Watterson  Case  is  misleading  in  that  it  states  that  the  evidence  of 
the  testator's  knowledge,  in  suspicious  cases,  shall  be  "equiva- 
lent, at  least,  to  having  heard  the  will  read  by  a  disinterested  and 
unimpeachable  party,"  when  the  language  of  the  opinion  is  that  such 
evidence  should  be  "  equivalent,  at  least,  to  the  reading  of  the  will, 
or  hearing  it  correctly  read."  A  party  who  is  neither  disinterested 
nor  unimpeachable  might  "  correctly  read  "  the  will.  Whether 
he  has  done  so  in  a  given  case  is  a  question  for  the  jury.  In  all 
cases  of  illiteracy  on  the  part  of  the  testator,  and  of  great  benefit 
to  the  writer  of  the  will,  the  controlling  idea,  beyond  the  ordinary 
proof  of  formal  execution  and  testable  capacity,  is  that  the  testator 
must  have  fully  comprehended  the  provisions  of  the  will  and  fully 
given  his  assent  thereto.  To  show  this  affirmatively  the  burden  is 
upon  the  proponent.  It  may  be  shown  by  any  competent  evidence, 
direct  or  circumstantial,  which  is  sufficient  in  weight  and  cogency 
to  remove  all  suspicion  and  satisfy  the  jury  of  the  fact. 

The  instruction  given  in  this  case  comes  fully  up  to  the  rule  in 
every  respect.  Summarized  on  this  point,  it  is  that  to  find  in  fa- 
vor of  the  will  the  jury  must  be  satisfied  that  the  testatrix  was 
fully  apprised  of  its  contents.  "  That  it  was  read  over  to  her,  and 
that  she  understood  the  same";  that  she  "was  fully  cognizant  of 
the  contents  of  the  will,  and  approved  it."  Not  only  was  the 
charge  given  full,  and  as  favorable  to  the  contestant  as  it  could 
have  been  within  the  law,  but  the  instruction  suggested  for  the 
first  time  in  the  assignment  of  errors  is  not  sound.  But  if  the 
charge  were  not  full  (being  correct  as  far  as  it  goes),  and  the  in- 


TESTATOR  MUST  UNDERSTAND  THE  WILL.— PRESUMPTION.  263 

struction  suggested  were  entirely  sound,  the  failure  to  give  it 
would  not  be  reversible  error.  To  be  so,  it  must  have  been  asked 
in  the  form  of  an  additional  instruction  in  the  court  below.  Mere 
meagreness  in  a  charge  is  not  ground  for  reversal.  Sutherland  v. 
Shelton,  12  Ileisk.  375;  Railroad  Co.  v.  Jones,  9  Heisk.  27; 
Overton  v.  Bolton,  Id.  762 ;  Sommers  v.  Railroad  Co.,  7  Lea  201 ; 
Railroad  Co.  v.  Gurley,  12  Lea  46  ;  Mayor,  etc.  v.  Bell,  Id.  157  ; 
Oil  Works  v.  Bickford,  14  Lea  651;  Railway  Co.  v.  Wynn,  88 
Tenn.  332,  14  S.  W.  Rep.  311 ;  Railway  Co.  v.  Foster,  88  Teun. 
671,  13  S.  W.  Rep.  694,  14  S.  W.  Rep.  428 ;  Railway  Co.  v. 
Hendricks,  88  Tenn.  710,  13  S.  W.  Rep.  696,  14  S.  W.  Rep.  488 ; 
Watterson  v.  Watterson,  1  Head  6  ;  Mann  v.  Grove,  4  Heisk.  403  ; 
Railroad  Co.  v.  King,  6  Heisk.  269. 

Finally,  it  is  assigned  as  error,  and  contended  in  argument  that 
"  there  is  no  testimony  in  the  record  to  justify  the  finding  of  the 
jury."  Several  witnesses  say  they  heard  the  testatrix  state,  at  nu- 
merous times  before  the  execution  of  her  will,  that  she  desired 
her  husband  to  have  her  land  for  life,  with  remainder  to  her 
brothers  and  sisters.  Others  state,  with  equal  certitude,  that  they 
heard  her  say,  before  the  date  of  the  will,  that  she  wanted  him  to 
have  it  absolutely,  and  did  not  want  her  "folks"  to  have  any  in- 
terest in  it.  Some  of  the  witnesses  testify  that  she  told  them,  af- 
ter its  date,  that  she  had  made  her  will,  giving  her  property  to  her 
husband.  That  he  was  kind  and  affectionate  to  her  is  sufficiently 
shown.  There  is  some  evidence  tending  to  show  that  she  was  not 
OD  good  terms  with  her  own  people,  and  that  they  had  been  un- 
kind to  her,  and,  on  the  other  hand,  there  is  evidence  tending  to 
show  that  this  is  not  true.  Her  declarations  were  competent  to  be 
considered  by  the  jury  in  determining  whether  she  fully  compre- 
hended and  approved  the  will  as  written.'  Headles  v.  Alexander, 
!t  Baxt.  604  :  Linch  v.  Linch,  1  Lea  526.  If  it  be  found  that  she 
did,  then,  of  course,  the  will  and  not  her  verbal  statements  must 
Control  the  course  of  Imt  property.      We  notice,  more  in  detail,  the 

testimony  of  <  >.  W.  Bill,  one  of  the  subscribing  witnesses.     He 
says:  --I  went  to  her  house,  and  went  in.     Her  husband  was  out 

Of  the  room.      She  picked  up  a  paper  and  said  it  was  her  will,  told 


1  Compare  the  casea  given  ""/<■  ""  "  Declarations,"  and  Bee  Index  under  the 
game  head. 


264  EXECUTION. 

me  she  had  signed  it,  and  showed  me  her  mark.  She  said  she  had 
willed  my  brother  everything  she  had  except  side-saddle  and  some 
clothing.  I  witnessed  the  will.  This  is  the  will  [being  shown 
the  original  will  on  file].  When  I  first  went  there  she  was  in  the 
house.  My  brother  Rit.  [C.  A.  Hill,  her  husband]  came  in  after 
I  got  there,  before  I  witnessed  the  will.  He  took  the  will  up  and 
read  it  in  the  presence  of  myself  and  Elroy  Hill,  at  my  request.  I 
never  sign  anything  without  having  it  read.  The  will  read  over 
was  the  same  as  what  she  had  told  me.  I  know  C.  A.  Hill's  hand- 
writing This  will  was  in  his  handwriting.  I  said  to  her  that  it 
looked  like  some  one  else  ought  to  have  written  it.  She  said  my 
brother  always  done  her  writing  and  could  do  that.  He  did  writ- 
ing for  her  both  before  and  after  they  were  married,"  etc.  If  this 
witness  speaks  the  truth  [his  credibility  was  peculiarly  a  question  for 
the  jury],  there  can  be  no  doubt  that  the  testatrix  understood  and 
approved  the  will.  She  told  him  before  it  was  read  in  their  joint 
presence  what  it  contained,  and  when  he  heard  it  read  he  found  it 
the  same  as  she  had  previously  told  him  it  was,  and,  when  the  will 
is  produced  in  court,  it  is  seen  to  be  what  she  told  him  it  was,  and 
as  it  was  read  to  them  by  the  defendant.  Altogether,  the  verdict 
is  abundantly  sustained.     Let   the   judgment   be   affirmed,  with 

costs. 

[Concerning  the  presumption,  arising  from  apparently  regular  ex- 
ecution, that  testator  knew  the  contents  of  the  will,  see  also  1  Wins. 
on  Exrs.  350,  note  (x) ;  Beall  v.  Mann,  5  Ga.  456  ;  Smith  v.  Dolby, 
4  Harring.  350 ;  Hoshauer  v.  Hoshauer,  26  Penn.  St.  404.] 


IV.    REQUEST  TO  WITNESSES  TO  SIGN. 

In  some  States  the  witnesses  must  be  requested  by  the  testator 
to  sign.1  In  others  this  is  not  required  in  terms  by  the  statute,8 
but  presumably,  even  in  that  case,  they  must  sign  with  his  assent 
and  knowledge.3  Even  where  a  request  is  essential,  it  need  not 
be  made  in  so  many  words. .   Any  act  or  conduct  on  testator's 


i  2  N.  Y.  R.  S.  63,  sec.  40,  subd.  4,  Birdseye's  Ed.  3343,  sec.  8,  subd.  4;  Cal. 
Civ.  Code,  §  1276;  Ark.  Dig.  sec.  6492. 

2  Ayres  v.  Ayres  (N.  J.),  12  Atl.  Rep.  621. 

3  Allen's  Will,  25  Minn.  39. 


IMPLIED    REQUEST   TO    WITNESSES.  265 

part  at  the  time  that  clearly  constitutes  a  manifestation  on  his 
part  of  a  desire  to  have  the  witnesses  sign,  will  suffice.1 

Illustration. 

Amos  Knox,  the  testator,  signed  the  will  in  presence  of  the 
witnesses.  Colin,  the  draftsman,  and  a  witness  then  said,  in  the 
presence  of  testator  and  witnesses,  that  "  it  was  necessary  that  tes- 
tator should  request  us  to  sign  as  witnesses,  and  therefore  I  said 
that  that  was  Mr.  Knox's  will,  and  he  wished  us  to  sign  it  as 
witnesses."  The  testator  made  no  dissent,  and  when  the  wit- 
nesses had  signed  the  will  he  took  it  into  his  possession  and 
thereafter  retained  it.     This  constituted  a  valid  "  request. 


55  3 


IMPLIED    REQUEST  TO   WITNESSES. 
Coffin  v.  Coffin. 

New  York  Court  of  Appeals,  1861. 
(23  N.  Y.  9.) 

Application  for  probate  of  an  instrument  purporting  to  be  the 
last  will  and  testament  of  Trustrum  Coffin,  deceased.  The  sur- 
rogate of  Dutchess  County  refused  probate,  and  his  decision  was 
affirmed  at  General  Term  in  the  second  district.  Appeal  to  the 
( lourt  of  Appeals. 

Several  objections  to  the  will  were  urged  by  the  contestants. 

Com  stork,  ( 'h.  .].  [After  disposing  of  other  objections  and 
finding  them  insufficient.] 

In  the  next  place,  as  to  the  attestation.  The  statute  requires 
two  witnesses,  each  of  whom  must  sign  his  name  at  the  end  of 
the  wdl,  at  the  request  of  the  testator.  Confining  ourselves  to 
the  evidence  of  these  two  witnesses,  the  facts  appear  to  be  these: 
They  were  present  at  the  testator's  house  on  the  day  in  question, 
by  Ins  own  procurement,  and  for  the  purpose,  as  there  is  reason 
to  believe,  of  witnessing  his  will.  When  the  instrument  was 
ready  for  execution  and  attestation,  they  were  summoned  to  the 
room  where  the  matter  was  transacted.  They  came  there,  saw 
the  testator  subscribe  his  name,  and  signed  their  names  as  wit- 

1  Peck  v  Cary,  27  X  V.  it.  Coffin  v.  Coffin,  '-'::  \r.  Y.9;  Biggins  v  Carlton, 
2s  Md.  it",  niii.  Estate  of  Crittenden,  Myr.  Prob.  R.(Cal.)60j  Rogers  v. 
Diamond,  18  \>i.    174. 

3  Gilbefl  v    Knox.  52  \.  V.  126 


266  EXECUTION. 

nesses.     Before  doing  so,  one  of  them  asked  the  testator  if  he 
requested  him  to  sign  the  will  as  a  witness  ;  to  which  he  answered 
in  the  affirmative.     Both  the  witnesses  then  proceeded  to  sign  ; 
the  draftsman  denoting  the  place  where  their  names  were  to  be 
written.     The  testator,  the  draftsman,  and  the  witnesses  were  all 
at  one  table,  and  in  close  proximity  to  each  other.     The  request 
to  attest  the  will  was  in  answer  to  the  question  thus  put  by  one 
of  the  witnesses,  and  no  other  or  different  communication  was 
made  to  the  other.     Taking  this  as  substantially  the  true  state- 
ment of  the  facts,  the  objection  which  has  been  urged  is,  that  one 
of  the  witnesses  attested  the  instrument  without  any  request  made 
by  the  testator.     Now,  the  statute,  it  is  true,  declares  that  each 
witness  must  sign  on  such  request.     But  the  manner  and  form  in 
which  the  request  must  be  made,  and  the  evidence  by  which  it 
must  be  proved,  are  not  prescribed.     We  apprehend  it  is  clear 
that  no  precise  form  of  words,  addressed  to  each  of  the  witnesses 
at  the  very  time  of  the  attestation,  is  required.     Any  communi- 
cation importing  such  request,  addressed  to  one  of  the  witnesses 
in  the  presence  of  the  other,  and  which,  by  a  just  construction  of 
all  the  circumstances,  is  intended  for  both,  is,  we  think,  sufficient. 
In  this  case  both  the  witnesses,  by   the  direction  or  with  the 
knowledge  of  the  testator,  were  summoned  to  attend  him  for  the 
purpose  of  witnessing  his  will.     They  came  into  his  presence  ac- 
cordingly, and  in  answer  to  the  inquiry  of  one  of  them,  in  which 
the  singular  instead   of  a  plural  pronoun  was  used,  he  desired 
the  attestation  to  be  made.     In  thus  requiring  both  the  witnesses 
to  be  present,  and  in  thus  answering  the  interrogatory  addressed 
to  him  by  one  of  them,  we  think  that  he  did,  in  effect,  request 
them  both  to  become  the  subscribing  witnesses  to  the  instrument. 
Any  other  interpretation  of  his  language,  and  of  the  attending 
circumstances,  would  be  altogether  too  narrow  and  precise. 
[Here  the  court  consider  and  overrule  one  other  objection.] 
On  the  whole,  we  are  of  opinion   that  the  judgment  of  the 
Supreme  Court  and  the  sentence  of  the  surrogate  must  both  be 
reversed,  without  costs  of  the  litigation  to  either  party,  and  the 
proceedings  remitted  to  the  surrogate,  with  a  direction  to  admit 
the  will  to  probate.1 

1  Also  Lane  v.  Lane,  95  N.  Y.  494. 


ATTESTATION  AND   SIGNATURE  BY    WITNESSES.  267 

Zott,  J.,  took  no  part  in  the  decision ;  all  the  other  judges  eon- 

rring. 

Ordered  accordingly. 


curnng 


V.  ATTESTATION  AND   SIGNATURE  BY  WITNESSES. 

As  a  general  proposition  our  statutes  require  that  the  will  must 
be  signed  by  attesting  witnesses.  The  statutes  vary  very  much, 
however,  among  themselves,  and  the  statute  in  question  must  in 
every  given  case  be  consulted.  There  are,  nevertheless,  certain 
leading  requirements  which  are  to  be  found  in  all  or  many  of  the 
statutes,  and  these  will  now  be  taken  up  in  order.  And  in  the 
first  place  attention  may  be  called  to  the  distinction  between  attest- 
ing and  signing.  "  Attestation  is  the  act  of  the  senses :  subscrip- 
tion [or  signing]  is  the  act  of  the  hand."  ' 

(1).    SIGNING. 

The  usual  and  appropriate  method  is  of  course  for  the  witness 
to  write  out  his  name.  But  as  in  the  case  of  a  testator,  other 
methods,  intended  to  effect  what  shall  stand  for  or  represent  a  sig- 
nature, will  suffice. 

Illustrations. 

(a).  Signature  by  mark.— A  witness  signed  by  making  a  mark. 
This  was  sufficient.2  The  fact  that  a  mistake  is  made  in  the  name 
written  around  the  mark,  as  "  Elizabeth  Cummins  "  for  u  Elizabeth 
Sharpe,"  does  not  invalidate  it.3 

(h).  Signature  by  'Inscriptive  term. — At  the  execution  of  the 
will  of  Charles  R.  Sperling,  the  solicitor  directed  one  of  the  wit- 
nesses. Thomas  Saunders,  to  sign  "as  servant  to  J\lr.  Sperling." 
He  accordingly,  misunderstanding  the  direction,  wrote  not  his 
name,  bul  merely  the  words  "servant  to  Mr.  Sperling."  Be  in- 
tended the  words  for  a  signature.  Sir  J.  P.  Wilde:  "1  thini 
there  is  a  Bufficienl  attestation  and  subscription.  I  am  satisfied 
that  Saunders  wrote  the  words  which  appear  on  the  will,  intend- 
ing thereby  an  identification  of  himself  as  the  person  attesting." 


1  Swift  v.  Wiley,  1  B   Mon.  (Ky  I  144 

•  Prldgen  v.  Pridgen,  18  [red    L.  (V  C.)  859. 

'  in  (J...., is  of  Aehmore,  8  Curt.  756. 

i  I,,  Goods  ol  Sperling,  8  Bw.  &  Tr.  272. 


268  EXECUTION. 

(c).  WRONG  NAME.— WHEN  NOT  SUFFICIENT. 
Ex  parte  Leroy. 

Surrogate's  Court,  New  York  County,  New  York,  1855. 

(3  Bradf.  227.) 
Bradford,  S. — The  will  propounded  for  proof,  reads   as  fol- 
lows : 

February  23<f,  1855. 

All  my  money  and  property  belong  to  my  wife  and  children. 
My  last  will.  Louis  Lerot. 

Before  John  Bowers. 
John  Bowers. 

It  appears  that  Charles  Bowers,  the  son  of  John  Bowers,  wrote 
this  paper  at  the  request  of  the  deceased,  and  then  signed  his 
father's  name  as  a  witness,  because  the  latter  could  not  write  very 
well,  and  he  did  not  suppose  he  was  going  to  sign.  The  father, 
however,  did  subscribe  his  own  name.  Charles  was  not  requested 
to  become  a  witness,  and  did  not,  in  fact,  sign  his  own  name,  not 
supposing  more  than  one  subscribing  witness  necessary.  The 
statute  requires  each  of  the  attesting  witnesses  to  "  sign  his  name 
as  a  witness."  Charles  did  not  sign  his  name,  and  the  signature  of 
his  father's  name  cannot  be  taken  as  a  substitute.  It  is  not  a  case 
of  mistake,  there  having  been  no  intention  to  have  more  than  one 
subscribing  witness.  I  think,  therefore,  the  execution  was  de- 
fective, and  that  the  will  must  be  rsjected. 

(d).  Intention  necessary  to  signature. — A  witness  wrote  his  full 
name,  Fred.  Wm.  Nap.  Wilson.  It  was  admitted  that  this  signa- 
ture itself  was  made  at  the  wrong  time,  and  did  not  count  as  a 
valid  signing.  Reliance  was  placed  on  the  fact  that  thereafter  the 
testator  duly  acknowledged  his  will  and  signature  in  the  presence 
of  Wilson  and  another  witness,  Dr.  White,  that  the  latter  signed  his 
name,  and  that  then  Wilson,  noticing  that  he  had  failed  to  cross 
the  F  in  his  first  name,  when  writing  it  before,  crossed  it  and 
added  the  date.  It  was  claimed  that  crossing  the  F  constituted  a 
signature.  But  it  was  held  not  so.  A  mark,  to  constitute  a  signa- 
ture, must  be  intended  as  such.  Here  it  was  only  intended  to  cor- 
rect an  error  in  the  former  writing,  and  was  not  meant  as  a  new 
signature.1 

1  Hindmarsh  v.  Carlton,  8  H.  L.  C.  160. 


SIGNATURE   BY   INITIALS.  269 

(e).  SIGNATURE   BY   INITIALS. 
In  tbe  Good§  of  Hood  Blainvay  Christian,  Esq.,  deceased.1 

Prerogative  Court  op  Canterbury,  1849. 
(2  Roberts.  110.) 

H.  H.  Christian,  Esq.,  a  Rear  Admiral  in  the  Royal  Navy,  died 
on  the  31st  Aug.,  1849,  leaving  a  will  and  a  codicil  bearing  date 
the  11th  February,  1818.  The  will  was  signed  by  the  testator  and 
the  witnesses  in  the  usual  form.  Immediately  after  execution  a 
short  codicil  was  added  and  duly  signed  by  the  testator,  and  to  this 
the  witnesses  signed  their  initials  only. 

Judgment. 

Sir  Herbert  Jenner  Fust : 

I  have  before  me  the  affidavit  of  one  witness  only ;  in  such  an 
extraordinary  case  all  the  witnesses  ought  to  have  joined.  The 
attesting  witnesses  to  the  so-called  codicil  have  affixed  their 
initials  only  ;  however,  I  have  no  doubt  in  the  matter,  though  I 
believe  this  is  the  first  instance  under  the  act  of  the  witnesses  so 
signing.  I  am  not  aware  that  the  witnesses  can  be  required  to 
sign  their  names  ;  2  I  am  of  opinion  that  there  is  a  sufficient  sub- 
scription on  their  parts,  and  therefore  I  decree  probate  as  prayed. 

if).  Subsequent  acknowledgment  by  witness. — As  a  general  prop- 
osition, the  signing  by  the  witnesses  must  be  complete  and  suffi- 
cient in  itself  when  made,  and  subsequent  acknowledgment  of 
their  signatures  by  the  witnesses  will  not  suffice.3  But  in  some 
jurisdictions  a  subsequent  acknowledgment  may  establish  them  as 
sufficient.4 

((/).  Signing  personally  or  by  (mother.— In  some  States,  wit- 
nesses must  sign  their  names  personally,  and  cannot  delegate  an- 
other to  sign  for  them."  While  in  others  they  may  request  an- 
other to  sign  for  them,  and  do  no  manual  act  themselves,  and   this 

may  suffice. 

1  To  the  same  point,  Jackson  v.  Van  Dusen,  5  Johns.  (N.  Y.)  144. 
?  Compare  the  New  York  Statute,  given  in  Appendix,  />ost. 

Matter  of  Downie's  Will,  42  Wis.  66. 
1  Sturdivant  v.  Birchett,  10  Gratt.  (Va.)  67. 

Duffle  v.  ( lorridon,  10  (Ja.  122,  based  on  an  express  provision  of  the  statute. 

Lord  v.  Lord,  58  N.  II.  7:  Upchurch  v.  CTpchurch,  L6  B.  Mon.  (Ky.)  L02; 
Je   e  ■    Parker,  'J  (Jratt.  i  7a.)  .r>7. 


270  EXECUTION. 

(h).  BOTH   SIGNATURES   WRITTEN  BY  ONE  WITNESS 
Matter  of  Strong. 

Surrogate's  Court,  Westchester  County,  New  York,  1891. 
(39  N.  Y.  State  Rep.  852.) 

Proceeding  for  probate  of  an  instrument  purporting  to  be  the 
will  of  Eliza  Strong,  deceased.  The  names  of  two  persons  as  at- 
testing witnesses  were  subscribed  to  the  will,  but  the  evidence 
showed  that  one  of  the  witnesses  wrote  his  own  name,  and  also 
that  of  the  other  witness,  at  her  request.  She  was  temporarily 
unable  to  write  herself  on  account  of  a  felon  on  her  right  hand. 

Coffin,  S. — The  question  as  to  whether  the  alleged  will  was 
sufficiently  executed  according  to  the  requirements  of  our  statutes 
on  the  subject,  inasmuch  as  the  names  of  both  witnesses  were 
written  solely  by  one  of  them,  is  alone  presented  for  adjudication. 
In  this  respect  it  will  be  seen  that  while  the  statute  requires  that 
the  will  shall  be  "  subscribed  "  by  the  testator  at  the  end  of  the 
will,  it  also  provides  that  "there  shall  be  at  least  two  attesting 
witnesses,  each  of  whom  shall  sign  his  name  as  a  witness  at  the 
end  of  the  will  at  the  request  of  the  testator." 

Thus  there  is  a  change  from  the  word  "  subscribed,"  as  applied 
to  the  act  of  the  testator,  to  the  words  "  sign  his  name,"  as  applied 
to  the  act  required  of  the  witnesses.  "Whether  it  was  intended  by 
the  legislature  to  treat  the  words  "  subscribe  "  and  "  sign  "  as  synon- 
ymous is  fairly  open  to  question.  If  it  did  not  so  intend,  why 
did  it  not  use  the  same  word  in  each  instance?  The  word  "sub- 
scribe," according  to  the  best  lexicographers,  is  to  write  under- 
neath, while  "  sign  "  is  defined  to  affix  a  signature  to.  And  it  was 
held  in  the  English  courts  that  the  word  sign,  as  used  in  the  statute 
of  frauds,  was  sufficiently  complied  with  if  the  party  wrote  his 
name  on  the  paper  in  any  place,  so  that  even  if  he  commenced  by 
writing,  "  I,  John  Jones,"  and  wrote  his  name  in  no  other  place, 
it  was  held  a  sufficient  signing  within  the  statute  ;  but  the  word 
subscribe  clearly  means  a  writing  at  the  end  or  foot.  And,  while 
they  have  given  a  very  liberal,  if  not  loose,  construction  of  the 
word  "  sign,"  in  so  far  as  the  statute  of  frauds  affecting  contracts 
was  concerned,  yet  in  the  case  of  wills,  where  the  witnesses  are  re- 
quired to  subscribe  as  such,  they  exact  some  physical  act  to  be  done 
by  the  witnesses,  either  by  writing  their  own  names  or  making 


BOTH    SIGNATURES    WRITTEN   BY   ONE   WITNESS.  271 

their  marks.  Moore  v.  King,  3  Curteis  243 ;  1  Jarm.  on  Wills, 
Randolph  &  Talcott's  ed.  215.  But  that  statute  expressly  per- 
mitted the  signature  of  the  testator  to  a  will  to  be  made  by  some 
other  person  in  his  presence  and  by  his  direction.  The  1  K.  L, 
364,  allowed  the  same  thing.  Under  these  statutes  it  was  held 
that  the  signature  of  the  testator  or  of  the  witnesses  by  making  a 
mark  was  sufficient.  Baker  v.  Dening,  8  A.  &  E.  94  ;  Jackson 
v.  Van  Dusen,  5  Johns.  144.  Many  other  and  more  recent  cases 
establish  the  same  principle.  But  the  question  still  remains,  is  the 
name  of  one  or  each  of  the  witnesses,  written  by  another,  a  sum", 
cient  compliance  with  the  requirement  of  the  statute  ?  In  the 
Goods  of  John  White,  2  Notes  of  Cases  461,  it  appeared  that  a 
husband,  a  witness,  signed  not  only  his  own  name,  but  also  that  of 
his  wife,  the  other  witness.  There  was  no  evidence  that  the  wife 
had,  in  fact,  become  a  party  to  the  subscription,  and  the  execution 
was  held  to  be  insufficient.  Here,  however,  the  wife  was  present  as  a 
witness,  and  because  of  her  temporary  disability  to  write  her  name, 
requested  her  husband  to  write  it  for  her,  which  he  did.  All  this 
occurred  at  the  time  of  the  execution  of  the  will  by  the  testatrix 
and  in  her  presence,  and  although  the  latter  did  not  also  request 
the  husband  to  write  the  wife's  name,  yet  by  her  silence  she  sanc- 
tioned the  act. 

Surrogate  Bradford,  eminent  for  learning  and  industry,  seems 
to  have  inclined  to  the  opinion  that  an  attesting  witness  must 
take  some  physical  part  in  the  act  of  signing,  in  order  to  a  com- 
pliance with  the  statutory  requirement  of  signing  his  name. 
Campbell  v.  Logan,  2  Bradf.  90-97;  Median  v.  Rourke,  Id.  385- 
392.  This  is  probably  in  accord  with  the  tenor  of  English  deci- 
sions on  the  subject,  with  some  few  exceptions ;  but  while  the 
precise  question  lias  not,  so  far  as  known,  been  determined  by 
the  courts  of  this  State,  yel  in  b e of  our  sister  States  a  subscrip- 
tion by  a  witness   in   the   manner  it  was  done  in  this  instance  has 

been  held  sufficient.  In  Massachusetts,  in  the  case  of  Chase  v. 
Kittredge,  1  Allen  H>  r>9,  CI  ray,  J.,savs:  l>  A  subscription  of  the 
name  <»r  mark  of  a  witness  by  another  person  iii  the  presence  of 
himself  and  the  testator  might  possibly  be  a  literal  compliance 
with  the  Btatute;  but  no!  being  in  the  handwriting  of  the  wit- 
ness, would  create  no  presumption  of  a  lawful  execution  and 
attestation   without  affirmative  evidence  thai    it   was  so  made." 


272  EXECUTION. 

Here  we  have  such  affirmative  evidence.  See,  also,  ITorton  v. 
Johnson,  18  Ga.  396.  In  Upchurch  v.  Upchurch,  16  B.  Mon.  102 
(Kv.),  and  in  Jesse  v.  Parker,  6  Gratt.  57  (Va.),  it  was  expressly 
held  that  such  a  signature  of  the  witness'  name  as  occurred  in  this 
instance  was  a  sufficient  execution  under  a  similar  statute.  In  the 
latter  case,  we  have  represented  the  singular  fact  of  a  will  being 
sustained  where  the  body  of  the  will,  the  name  of  the  testator,  of 
the  three  witnesses  required  in  that  State,  were  all  in  the  hand- 
writing of  one  person.  As  was  well  said  in  that  case  :  "  Where 
the  attestation  is  by  mark,  the  validity  of  such  an  attestation  does 
not  depend  upon  the  fact  of  the  witness  making  his  mark,  or  do- 
ing some  manual  act  in  connection  with  the  signature,  but  upon 
the  signing  of  the  name  of  the  witness  by  his  authority." 

The  maxim,  qnifacit  per  alium  facit per  se,  has,  doubtless,  its 
limitations;  but  it  is  difficult  to  discover  why  it  is  not  applicable 
here.  The  frauds  in  the  execution  of  wills  which  the  statute  was 
designed  to  guard  against  will  in  no  way  be  facilitated  by  the 
sanctioning  of  this  mode  of  execution.  Still,  where  we  consider 
that  the  art  of  writing"  is  so  common  that  there  can  be  little  trouble 
in  finding  witnesses  who  can  write  their  names,  it  is  desirable 
that  wills  should  be  witnessed  by  such  persons,  especially  in  view 
of  the  fact  that  should  they  make  their  mark,  or  sign  by  the  hand 
of  another,  and  they  should  predecease  the  testator,  there  would 
be  no  possibility  of  proving  their  handwriting,  and  then  the  will 
could  not  be  admitted  to  probate,  unless  other  persons  should 
chance  to  be  present  who  could  testify  to  the  facts.  For  the  stat- 
ute provides  that  in  case  the  witnesses  be  dead,  the  will  may  be 
established  by  proof  of  the  handwriting  of  the  testator  and  of  the 
subscribing  witnesses.     (Code,  sec.  2620.) 

At  first  my  impression  was  that  the  execution  of  this  will  was 
insufficient ;  but  a  further  examination  of  authorities  and  subse- 
quent reflection  have  led  to  a  different  conclusion.  It  is,  there- 
fore, held  to  be  a  valid  will,  in  so  far  as  its  execution  is  con- 
cerned. 

(2).    POSITION    OF    THE    SIGNATURES. 

Some  statutes  require  the  witness  to  "  sign,"  some  to  sign  at 
the  "foot,"  or  "end,"  some  to  "  subscribe."  Accordingly,  the 
decisions  on  what  shall  constitute  a  valid  signature,  as  concerns 
its  position  on  the  instrument,  vary. 


WHERE   POSITION   NOT   SPECIFIED    BY   STATUTE.         273 

(a).    Where  the  position  is  not  specified  by  statute. 
In  the  Goods  of  Braddock. 

High  Court  of  Justice,  Probate  Division,  1876. 
(1  P.  D.  433.) 

Mary  Ann  Braddock,  late  of  Liverpool,  in  the  county  of  Lan- 
caster, widow,  died  on  the  9th  of  February,  1876.  Her  will  had 
been  executed  in  1864,  and  was  on  one  side  of  one  sheet  of  paper. 
On  January  25th,  1876,  she  made  an  erasure  and  interlineation  in 
the  will,  and  also  wrote  a  codicil  on  a  separate  and  smaller  piece 
of  paper.  This  was  attached  to  the  will  with  a  pin.  She  duly 
executed  this  codicil  in  the  presence  of  the  witnesses,  and  at  her 
request  one  of  them  wrote  on  the  bach  of  the  original  will,  the 
words :  "  Also  signed  this  day  in  the  presence  of  each  other, 
January  25th,  1876,"  below  which  the  witnesses  then  signed  their 
names  in  her  presence. 

(J une  27.)  Sir  J.  Hannen  (President). — In  this  case  the  wit- 
iu.-ssi's,  instead  of  attesting  the  signature  of  the  testatrix  on  the 
paper  itself,  attested  on  the  back  of  the  original  will,  to  which 
that  paper  was  attached  by  a  pin.  The  law  does  not  require  that 
the  attestation  should  be  in  any  particular  place,  provided  that 
the  evidence  satisfies  the  court  that  the  witnesses  in  signing  their 
names  had  the  intention  of  attesting.  But  the  attestation,  if  not 
mi  the  same  sheet  of  paper  as  the  signature  of  the  testator,  must 
l)e  on  a  paper  physically  connected  with  that  sheet.  No  particular 
mode  of  affixing  one  piece  of  paper  to  another  is  prescribed  by 
law,  and  I  cannot  say  that  the  fastening  of  two  sheets  of  paper 
together  by  a  ]»in  is  an  insufficient  mode  of  connection,  or  that  it 

is  less  effectual  than  the  lawyer's  mode  of  fastening  by  tap''. 
II,  re  I  am  satisfied  by  the  evidence  that  the  papers  were  con- 
nected together,  and  that  in  writing  their  oames  on  the  back  of 
the  original  will,  the  witnesses  intended  to  attesl  the  signature  of 
the  testatrix  at  the  foot  of  the  codicil.  Thai  codicil,  being  duly 
executed, confirms  the  will  in  itsaltered  Btate,and  probate  will  go 
accordingly. 

18 


274  EXECUTION". 

In  the  Goods  of  Wilson. 

English  Court  op  Probate,  1866. 
(L.  R.1P.&  D.  269.) 

The  will  of  John  Wilson,  of  Sheffield,  ended  at  the  bottom  of 
the  first  page  thus  : 

"  John  Wilson. 
Witness,  William  Hatton." 

At  the  top  of  the  next  page  were  these  words : 

"  Leasehold  property. 

A  cottage  situate  in  George-street,  in  the  parish  of  E ,  in 

the  county  of  York  ;  "  and  beneath  were  three  signatures : 
"  Win.  Parker, 

Benjamin  F.  Littlewood, 
William  Darley." 

Only  one  witness,  Littlewood,  testified  at  the  hearing,  the  others 
having  died.  His  memory  of  the  circumstances  attending  execu- 
tion was  very  indistinct. 

Sir?/.  P.  Wilde. —  ...  It  is  said  that  the  position  of  the  names 
of  the  witnesses  is  immaterial,  provided  they  are  in  such  a  posi- 
tion as  to  show  that  they  were  placed  there  for  the  purpose  of 
attesting  the  will.  In  considering  whether  persons  have  sub- 
scribed a  will  as  attesting  witnesses  the  position  of  the  signatures 
may  be  most  material.1  If  they  are  written  under  an  attestation 
clause  no  difficulty  arises,  but  if  they  are  placed  elsewhere  their 
position  may  be  important,  because  if  they  are  placed  under  a 
particular  clause  or  statement  the  inference  is  that  prima  facie 
they  were  put  there  to  give  effect  or  to  testify  to  the  words  of  the 
clause  or  statement.  ...  If  these  names  appeared  at  the  top  of 
the  page  it  might  have  been  supposed  that  they  were  put  there  for 
the  purpose  of  attesting  the  will.  But  we  find  this  memorandum 
and  these  names  written  under  it,  very  probably  because  they  are 
to  become  trustees  of  the  property  to  which  the  memorandum 
relates.  They  probably  signed  for  the  purpose  of  giving  their 
assent  to  the  acceptance  of  the  trust ;  but  whatever  may  have 
been  their  motive  for  attesting  the  memorandum,  it  does  not  ap- 

1  Dodworth  v.  Crow,  1  Dem.  256. 


SIGNING   IN   PRESENCE   OF  TESTATOR.  275 

pear  that  they  were  placed  there  in  order  to  attest  the  deceased's 
signature  to  the  will.  ...  In  reality  this  witness  adds  little  light 
to  the  transaction,  and  does  not  contradict  the  obvious  circum- 
stances as  they  appear  on  the  face  of  the  paper.  I  must  refuse 
probate  of  the  paper. 
Probate  refused. 

(b).    Where  the  position  is  specified  by  statute. 

1.  Iii  Kentucky,  for  instance,  the  witnesses  must  "  subscribe."  ' 

2.  In  New  York,  for  another  instance,  the  witnesses  must  sign 
their  names  "  at  the  end  of  the  will."  2 

3.  Below  testator's  signature  was  a  written  assent  to  the  provi- 
sions of  the  will,  signed  by  testator's  wife.  By  mistake  one  of  the 
witnesses,  intending  to  witness  merely  the  execution  of  the  will, 
sisrned  his  name  below  this  assent  instead  of  above  it.  It  was 
held  a  good  "  subscription."  3 

4.  Even  where  the  place  of  signing  is  designated,  as  well  as 
in  cases  where  mere  "signing"  is  required,  the  exact  position  of 
the  signatures  in  a  given  case  may  of  course  be  evidence  on  the 
question  whether  they  were  in  fact  intended  as  an  attestation.4 

(3).    IN   THE    PRESENCE   OF   THE   TESTATOR. 

Nearly  all  the  statutes  of  wills  require  the  witnesses  to  sign  in 
the  "  presence"  of  the  testator.5  The  determination  of  just  what 
this  word  "presence"  means  has  in  many  reported  cases  proved 
verv  perplexing.  We  will  first  give  a  number  of  illustrations 
drawn  from  actual  cases,  and  then  state  what  appears  to  be  the 

correct  rule. 

Illustrations. 

(a).  Wvatt  Cater,  the  testator,  was,  at  the  time  of  the  subscrip- 
tion by  the  witness,  in  a  state  of  insensibility.  Lord  Mansfield: 
••  All  the  wit  knew,  at  the  time  of  the  attestation,  thai   the 

1  Soward  v  Boward,  I  Duv.  126. 
•  \    V.  R.  s.  63,  Bee.  40,  subd.  1.  Birdseye'a  Ed.  j>.  8848,  sec  8,  Bubd.  4. 
Potts  v.  Pelton,  70  End.  L68 
'  Dodwortb  v.  Grow,  l  Dem.  (N.  F.)256.     In  Goods  of  Wilson,  given  ante. 
In  \cw  fork  the  witnesses  hit  not  required  by  the  statute  to  sign  in  tea- 
t;it,  ,,,,,     Rudden  v.  McDonald,  I   Bradf.  B52;  Vernam  v.  Spencer,  8 

Bradf.  L6. 


270  EXECUTION. 

testator  was  insensible.  He  was  a  log,  and  totally  absent  to  all 
mental  purposes."  Buller,  J. :  "  The  attestation  in  the  testator's 
presence  is  as  essential  as  his  signature,  and  all  must  be  done  while 

he  is  in  a  capacity  to  dispose  of  his  property Here  the 

trunk  remained  but  the  man  was  gone."  ' 

(b).  Will  of  Alanson  Allen.  Cornell,  J.:  "Neither  is  it  im- 
portant to  determine  whether  the  testator  actually  saw  the  sub- 
scribing witnesses  subscribe  their  names  as  such,  as  it  is  quite 
clear,  both  from  the  evidence  and  the  findings,  that  it  was  done 
in  his  immediate  and  conscious  presence,  and  that  he  could  have 
seen  it,  if  he  had  felt  so  disposed." 2 

(b).  W.  W.  Walker,  the  testator,  was  lying  in  bed,  when  the  wit- 
nesses signed,  and  was  "facing  west."  The  witnesses  signed  on  a 
table  "  east  and  back  of  testator."  He  had  the  physical  ability 
to  turn  his  head  and  see  them  sign  had  he  chosen  to  do  so.  The 
signature  was  held  to  have  been  in  his  presence.3 

(d).  Testator  lay  in  bed,  with  his  back  to  the  witnesses,  unable 
to  see  them  sign  or  to  turn  himself  over.  Their  signing  was  held 
not  to  have  been  in  his  presence.4 

(e).  Patrick  Persse,  the  testator,  executed  his  will  while  sick  in 
bed  in  a  small  room.  The  curtains  were  drawn  away  at  the  sides 
of  the  bed,  but  at  the  foot  they  shut  off  the  view  of  the  fire. 
One  of  the  witnesses  signed  at  a  small  table  at  the  foot  of  the  bed 
and  cut  off  from  testator's  view  by  the  curtain.  It  was  held  that 
the  requirement  that  the  signing  must  be  in  the  line  of  vision  ap- 
plies where  the  witnesses  are  in  another  apartment,  but  not  neces- 
sarily when  they  are  in  the  same  room.6  The  decision  in  this  case 
apparently  rests  on  the  presumption  hereafter  to  be  referred  to 


1  1  Doug.  241;  also  Orndorff  v.  Hummer,  12  B.  Mon.  (Ky.)  619. 

2  Allen's  Will,  25  Minn.  39;  also  to  the  same  point,  Tod  v.  Winchelsea,  2 
Carr.  &  P.  488. 

3  Walker  v.  Walker,  67  Miss.  529.  And  so,  also,  if  he  could  have  seen,  if  he 
chose,  by  merely  changing  his  posture,  and  was  able  to  do  so  himself.  Aikin 
v.  Weckerly,  19  Mich.  482. 

4  Neil  v.  Neil,  1  Leigh  (Va.)  6;  it  would  not  suffice  that  he  might  have  been 
moved  by  others,  had  he  desired  it,  Id. ;  contra  as  to  this  last  point,  see  Orn- 
dorff v.  Hummer,  12  B.  Mon.  (Ky.)  619 

5  Newton  v.  Clarke,  2  Curt.  320. 


SIGNING   IX   PRESENCE   OF  TESTATOR.  277 

that  prima  facie  a  signing  in  the  same  room  is  in  testator's  pres- 
ence, and  on  the  fact  that  for  all  that  appeared  he  might  have 
pushed  aside  the  curtain  had  he  chosen  to  do  so.  The  witnesses, 
when  signing,  were  within  the  line  of  his  vision,  save  only  for  the 
curtain  close  to  him. 

(/).  When  the  witnesses  signed,  the  bed  curtains  were  drawn 
close  all  around  the  bed  where  testatrix  lay  dying.  She  lay  on 
one  side  with  her  face  away  from  the  witnesses,  and  could  not 
have  turned  over,  or  seen  them,  even  if  the  curtains  had  been 
open.  The  signing  by  witnesses  was  held  not  to  have  been  in  the 
presence  of  the  testatrix.1 

iff).  Even  though  in  the  same  room,  if  the  signing  were  shown 
to  have  been  done  in  a  corner  in  a  secret  and  clandestine  manner, 
it  would  not  be  u  in  the  presence  "  of  the  testator." 

(A).  The  witnesses  to  the  will  of  Barbara  Ambre  signed  in  an 
adjoining  room.  The  door  was  open,  and  from  where  she  lay 
propped" up  in  bed  she  could  have  seen  them  sign  if  she  chose. 
This  was  sufficient.3 

(i).  Testator  was  lying  sick  in  bed  in  one  room.  One  witness 
signed  in  the  next  room.  The  door  was  open  between,  and  if 
testator  had  sat  up  in  bed,  as  he  was  able  to  do,  he  could  have 
seen  the  will  signed.  "  The  test  in  this  case  is,  whether  the  tes- 
tator might  have  seen,  not  whether  he  did  see,  the  witnesses  sign 
their  names."4 

(j).  The  testator  lay  in  a  bed  in  one  room,  and  the  witnesses 
went  through  a  small  passage  into  another  room,  and  there  set 
their  names  at  a  table  in  the  middle  of  the  room,  and  opposite  to 
the  do^r,  and  both  that  and  the  door  of  the  room  where  the  tes- 
tator lav  were  open  so  that  he  might  have  seen  them  subscribe 
their  names  if  In-  would  ;  and  though  there  was  no  positive  proof 
that  he  did  see  them  subscribe,  yet  that  was  a  sutlicient  Mibserib- 
iug  within  the  meaning  of  the  statute.6 

(/ •).  Eonora  Jenkins  executed  her  will  while  sitting  in  her  ear- 

'  Tribe  v.  Tribe,  i  Roberts.  7?:..         Bee  Longford  \.  Byre,  i  P.  Wins.  740. 

Aml.n-  v.   \\Yi-h:iar,  71  III.   KM). 
'  In  Good*  Of  Trimin-11.  11  Jut.  (N.  B.)  848. 
b  Davy  v.  Smith,  ::  Balk.  :'>!>">. 


278  EXECUTION. 

riaee  outside  her  attorney's  office.  The  witnesses  then  took  the 
will  into  the  office  and  signed  it  there.  Through  the  office  win- 
dow testatrix  might,  had  she  wished,  have  seen  them  sign.  In 
the  opinion  of  Lord  Chancellor  Thurlow,  the  will  was  well  exe- 
cuted.1 

(I).  The  testator  requested  the  witnesses  to  go  into  another 
room  seven  yards  distant,  to  attest  the  will.  In  that  room  there 
was  a  window  broken  through  which  testator  might  see  them. 
Per  Cur. :  "  The  statute  required  attesting  in  his  presence,  to 
prevent  obtruding  another  will  in  place  of  the  true  one.  It  is 
enough  if  the  testator  might  see,  it  is  not  necessary  that  he  should 
actually  see  them  signing,  for  at  that  rate  if  a  man  should  but 
turn  his  back,  or  look  oft",  it  would  vitiate  the  will.  Here  the 
signing  was  in  the  view  of  the  testator ;  he  might  have  seen  it, 
and  that  is  enough."  2 

(m).  Charlotte  Piercy,  the  testatrix,  at  the  time  of  the  execution 
of  her  will,  was  very  sick,  and  totally  blind.  After  she  had  signed 
in  the  presence  of  the  witnesses,  they  signed  in  an  adjoining  room 
across  a  passage.  The  doors  were  both  open,  and  from  where  she 
lay  she  could  have  seen  them  sign  if  she  had  not  been  blind.  Sir 
Herbert  Jenner  Fust :  "  When  this  case  was  moved  on  a  former 
occasion,  there  was  no  evidence  to  show  that  the  testatrix  could 
have  seen  the  witnesses  sign,  had  she  had  her  eyesight,  and  I  felt 
I  could  not  place  her  in  a  better  position  than  one  who  could  see. 
It  does  not  appear  whether  there  were  curtains  to  the  bed ;  still, 
as  it  is  positively  sworn  by  two  witnesses  that  she  could,  had  she 
had  her  sight,  have  seen  from  her  bed  the  witnesses  subscribe,  I 
cannot  refuse  this  application."  3 

(n).  Jackson  Riggs,  the  testator,  was,  when  he  executed  his  will 
and  codicil,  obliged,  as  a  result  of  an  accident,  to  lie  on  his  back 
and  was  unable  to  turn  his  head  or  look  sideways.  The  codicil 
was  signed  by  the  witnesses  at  a  table  within  four  feet  of  him, 
and  he  could  have  seen  them  sign  if  he  had  been  able  to  move  his 

1  Casson  v.  Dade,  1  Bro.  Ch.  99.  3  Shires  v.  Glascock,  2  Salk.  688. 

3  In  Goods  of  Piercy,  1  Roberts.  278.  In  proving  a  blind  man's  will  it  must 
be  shown  that  he  knew  in  some  way  the  contents  of  the  will  he  executed.  It 
is  not  strictly  necessary,  however,  that  the  identical  will  be  read  over  to  him. 
Fincham  v.  Edwards,  3  Curt.  63. 


SIGXING   IN   PRESENCE   OF  TESTATOR.  279 

head.  His  case  was  held  to  be  the  same  in  principle  as  that  of  a 
blind  man.  Practically,  he  was  deprived  of  the  use  of  his  eyes. 
The  signing  was  held  to  have  been  done  in  his  "presence."  ' 

(o).  The  witnesses  to  the  will  of  Alexander  Ellis  took  the  in- 
strument into  another  room  to  sign  their  names  to  it.  The  doors 
were  open,  and  they  were  so  near  him  that  they  could  hear  him 
breathe.  But  they  could  not  see  him  nor  be  seen  by  him.  The 
signing  was  held  not  to  have  been  in  his  presence.2 

(_p).  William  Norton,  the  testator,  signed  his  will  in  one  office. 
The  witnesses  then  signed  it  in  an  adjoining  office.  The  door 
between  the  rooms  was  wide  open.  A  line  passing  from  the  desk 
where  testator  sat,  to  that  where  the  witnesses  signed,  would 
necessarily  curve  in  order  to  pass  through  the  open  doorway.  It 
was  held  that  as  they  were  out  of  testator's  range  of  vision  where 
he  sat,  the  will  was  not  signed  in  his  presence.3 

(q).  Mary  Ann  Killick,  the  testatrix,  lay  sick  in  bed  in  one 
room.  The  witnesses  signed  in  the  next  room.  The  door  was 
open  between.  By  raising  herself  in  bed,  and  inclining  her  head, 
she  could  have  seen  them  sign,  but  not  otherwise.  She  had  not 
seen  and  did  not  see  the  witnesses  at  all,  or  know  thev  were  sign- 
ing,  or  even  know  they  were  there.  Sir  J.  P.  Wilde:  .... 
"  I  think  such  an  act  as  this  cannot  be  said  to  be  done  by  one  per- 
son in  the  presence  of  another,  unless  at  the  time  each  is  aware 
of  the  other's  presence."  On  this  (and  another)  ground  he  pro- 
nounced against  the  codicil  in  question.'' 

( /i.  The  attesting  witnesses  of  the  will  of  Emma  Loring  were 
present  at  its  execution,  but  did  not  themselves  subscribe  it  for 
about  half  an  hour,  and  then  did  so  in  an  adjoining  room.  The 
door  was  open  between  the  two  rooms,  but  the  testatrix  was  sick, 


1  Kiggs  v.  Riggs,  185  Mass.  2:58.  For  a  somewhat  similar  case,  where,  how- 
ever, the  place  <>r  signing  was  net  even  within  testator's  "  range  "t  vision,"  and 
yet  the  will  was  upheld,  in  admitted  violation  of  the  rule  generally  established, 
Bee  Cook  v.  Winchester  I  Mich.),  46  N.  W  .  106. 

•  In  Goods  of  Ellis,  ?  dirt.  895 

orton  v.  Bazett,  Deane<&  8w  359,  giving  a  diagram  showing  the  position 
of  the  desks,  the  doorway,  etc.  This  was  reconciled  with  Newton  v.  Clarke, 
tupra,  by  the  tact  thai  inn-  the  witnesses  were  in  another  room. 

1  In  Goods  of  Killick,  :i  Bw.  &  Tr.  578. 


2S0  EXECUTION. 

and  could  not  from  where  she  lay  have  seen  them  sign,  and  did 
not  even  know,  at  the  time,  that  they  were  doing  so.  Sir  James 
Ilannen :  "  In  no  sense  can  it  be  said  that  the  witnesses  signed  in 
the  presence  of  the  testatrix,  and  this  document  is  therefore  inop- 
erative as  a  testamentary  instrument."  ' 

The  principles  to  be  deduced  from  the  authorities  illustrated 
by  the  foregoing  instances,  may  now  be  stated  as  follows : 

In  States  where  the  statutes  require  the  witnesses  to  sign  in 
"  the  presence  "  of  the  testator,  it  is  not  essential  that  they  should 
sign  in  the  same  room  with  him.  The  cases  thus  fall  naturally 
into  two  classes,  those  where  the  witnesses  do,  and  those  where 
they  do  not,  sign  in  the  room  with  testator.  These  classes  should 
be  considered  tirst  together  and  then  separately. 

First,  then,  as  the  general  purpose  of  the  statute  is  to  insure  a 
reasonable  opportunity  for  testator  to  oversee  the  acts  of  the  wit- 
nesses, be  sure  that  they  sign  the  paper  as  he  turns  it  over  to 
them,  and  generally  be  in  a  position  to  satisfy  himself  of  their 
faithfulness  and  accuracy,  the  best  practical  meaning  to  be  at- 
tributed to  the  word  "  presence  "  is  that  it  requires  the  witnesses 
to  sign  where  testator  can  see  them  if  he  wishes  to,  and  it  is  not  re- 
quired  that  he  must  in  fact  actually  see  them.  Such  being  the  pur- 
pose of  the  statute,  let  us  now  consider  the  two  classes  of  cases. 

(a).  Signing  in  the  same  room. — Here  the  natural  and  logical 
prima  facie  presumption  is,  that  the  position  of  the  witnesses 
satisfies  the  statute,  though  this  presumption  may  be  overthrown 
by  proof.  But  the  actual  facts  shown  must  be  weighed  in  the 
light  of  the  purpose  of  the  statute,  and  if  it  be  shown  that  they 
signed  where  the  given  testator  could  not  have  seen  them  if  he 
had  tried,  then  the  signing  was  not  in  his  presence. 

(b).  Signing  not  in  the  same  room.— Here  the  reasonable^>Wm# 
facie  presumption  is  that  the  signing  was  not  in  testator's  pres- 
ence. But  if  the  actual  facts  show  that  the  spirit  and  purpose  of 
the  statute  were  fully  satisfied,  that  is,  if  the  signing  was  in  the 
line  of  testator's  vision  where  he  was,  so  that  he  could  have  seen 
without  changing  his  location,  or  doing  more  than  shifting  his 
position,  as  by  turning  his  head,  or  rolling  over  on  his  side,  then 

1  Jenner  v.  Ffinch,  5  P.  D.  106. 


THE   ATTESTATION   CLAUSE.  281 

it  was  in  his  constructive  "  presence  "  in  the  sense  intended  by  the 
statute,  although  not  in  his  actual  presence.1  In  this  case  it  does 
not  suffice  that  testator  might,  by  rising  and  walking  a  few  steps, 
have  brought  the  witnesses  within  his  range  of  vision. 

THE    ATTESTATION    CLAUSE. 

It  is  the  usual  practice  to  place  at  the  end  of  the  will,  after  the 
signature  of  the  testator,  a  formal  statement  enumerating  the  sev- 
eral statutory  requisites  of  due  execution,  and  alleging  that  they 
have  been  duly  complied  with.  The  common  form  is  substan- 
tially as  follows: 

(Signature  of  testator.)     (Seal.)2 

Signed,  sealed,  published  and  declared 
by  the  above-named  testator,  as  his  last 
will  and  testament,  in  the  presence  of  us 
who,  at  his  request,  and  in  his  presence, 
and  in  the  presence  of  each  other,  have 
hereunto  set  our  names  as  witnesses,  this 
day  of  ,  18     . 

(Signatures  of  witnesses.) 

This  form  in  any  given  case  may  be  shortened  by  omitting 
reference  to  any  acts  not  called  for  by  the  controlling  statute, 
or  changed  to  adapt  it  to  the  actual  facts.  Thus,  a  testator  may 
have  signed  his  name  beforehand,  and  acknowledged  his  signature 
(where  that  is  required)  in  the  presence  of  the  witnesses,  in 
which  case  the  statement  in  the  attestation  clause  should  corre- 
spond to  these  facts.  It  is  not  necessary  to  have  any  attestation 
clause  at  all,3  and  if  one  is  added,  it  is  sometimes  very  brief,  as, 
for  instance,  the  mere  phrase  "  Witnessed  by,"  or  "  Witness  our 
hands,"  etc.  When  it  states  the  details  of  the  execution,  it  fur- 
nishes a  convenient  memorandum  of  what  actually  took  place, 
and  its  value  as  evidence  is  set  forth  in  the  following  cases. 

1  Mandeville  v.  Parker,  81  N.  J.  Eq.  242;  Neil  v.  Neil,  I  Leigh  (Va.)  6; 
Orndorffv.  Bummer,  12  B.  Mon.  (Ky.)  619. 

Apart  from  the  possible  bearing  of  any  local  statute  in  force  at  the  time  in 
question,  a  seal  Is  not  now  necessary  in  England  or  in  any  State  of  the  Onion. 
For  a  New  York  illustration,  Matter  of  Diez,  60  N.  Y.  88. 

•In  re  Look's  Will,  5 »  V  Hupp  50;  Jackson  v.  .lack-on.  89  NT.  Y.  158 
(169),  and  cases  cited  ;  Robinson  v.  Brewster,  80  N.  !■;.  Rep,  (111.)  0 


282  EXECUTION. 

(1).  Where  the  witnesses  forget  the  facts. 
In  the  Will  of  James  Morrison. 

Surrogate's  Court,  New  York  County,  New  York,  1892. 

(N.  Y.  State  Rep.) 

Hansom,  S. — The  paper  was  executed  in  1861.  The  two  sub- 
scribing witnesses — intelligent  men — have  no  recollection  of  the 
facts  attending  the  execution  of  the  paper.  They  knew  the  de- 
cedent well,  recognized  his  signature  and  testified  that  they  were 
confident,  having  signed  the  attestation  clause,  the  recitals  therein 
must  be  true.  The  clause  comes  in  aid  of  probate  when  by  the 
lapse  of  time  the  memories  of  witnesses  fail  to  recall  the  facts. 
(Matter  of  Pepoon,  91  ET.  Y.  255.)  The  will  may  be  admitted 
to  probate. 

[Also  Matter  of  Holgate,  1  Sw.  &  Tr.  261 ;  Matter  of  Kellum, 
52  N.  Y.  517  ;  Kugg  v.  Bugg,  &3  N".  Y.  592 ;  Gove  v.  Gawen,  3 
Curt.  151;  Brown  v.  Clark,  77  K  Y.  369  (372);  Stoutenburgh 
v.  Hopkins,  43  N.  J.  Eq.  577.  Where  the  witnesses  disagree,  the 
rule  is  that  affirmative  evidence  of  what  did  take  place  is  intrin- 
sically of  more  weight  than  negative  testimony  that  certain  acts 
were  not  performed.     Chambers  v.  Queen's  Proctor,  2  Curt.  415.] 

In  the  Goods  of  John  Holgate  (deceased),  on  Motion. 

English  Court  op  Probate,  1859. 
(1  Sw.  &  Tr.  261.) 

The  deceased,  John  Holgate,  died  on  the  13th  September,  1858, 
leaving  a  will  in  his  own  handwriting,  which  terminated  thus: 

"This  15th  day  of  August,  1851. 
"  Signed  by  me,  John  Holgate,  the  testator,  as  and  for  his  last 
will  and  testament.     In  the  joint  presence  of  us  present  at  the 

e  _  e 

same  time,  who  in  his  presance,  at  his  r  quest,  and  in  the  pres  nee 

a  a 

e 

of  each  othior,  have  her  unto  subscribed  our  names  as  witnesses. 

a 

"John  Holgate. 
"  John  Hodgson.       Henry  Guy." 

The  attesting  witnesses  in  their  affidavits  stated  "  that  they 
signed   the   paper    at    the    request   of    the    testator,  who  said 


THE   ATTESTATION   CLAUSE.  283 

when  he  brought  it  to  them,  '  I  want  you  to  sign  this,'  or 
'  Put  your  name  to  this,'  or  in  words  to  that  effect,  but 
they  could  not  recollect  the  exact  words ;  that  they  were 
both  present  at  the  time,  and  subscribed  the  will  in  the  tes- 
tator's presence  ;  that  they  could  not  say  positively,  whether  the 
said  will  was  signed  when  he,  the  testator,  brought  it  to  them  or 
not,  but  to  the  best  of  their  recollection  and  belief  it  was,  though 
they  could  not  recollect  whether  he  signed  it  in  their  presence  or 
not,  their  impression  being  that  he  did  not,  but  that  it  was  signed 
when  he  first  bnmght  it  to  them;  that  the  signature  was  in  the 
handwriting  of  the  deceased ;  that,  to  the  best  of  their  recollec- 
tion, the  testator  did  not  mention  that  the  said  paper  he  so  re- 
quested them  to  sign  was  his  will,  but  that  they  could  not  be  sure 
that  he  did  not,  but  they  then  thought  and  considered  it  was  his 
will."  The  will  was  executed  at  the  house  of  the  witness  John 
Hodgson,  and  shortly  afterwards  was  handed  by  the  testator  to 
his  daughter,  in  whose  custody,  or  in  that  of  her  husband,  it  re- 
mained until  after  the  death  of  the  testator. 

Dr.  Middleton  cited  Faulds  v.  Jackson  (6  N.  C.  App.  1),  and 
submitted  that  the  evidence  of  the  witnesses,  and  the  position  of 
their  signatures,  established  that  if  the  testator  did  not  sisrn  his 
name  in  their  presence,  his  signature  must  have  been  seen  by 
them  when  they  subscribed  their  names. 

Sir  (J.  Crrssii'dl.—  The  witnesses  cannot  recollect  whether  the 
testator  brought  it  signed,  or  signed  it  in  their  presence.  In 
either  case  it  is  entitled  to  probate.     Probate  granted. 

In  the  Will  of  Stephen  Harking. 

Surrogate's  Coukt,  New  York  County,  New  York,  1892. 
(New  York  Law  Journal,  May  20,  1892,  p.  478.) 

Ii<i iismn,  S.  The  paper  offered  for  probate  was  written  on  a 
printed  blank  form  for  a  will  and  was  executed  November  30th, 

91.  Upon  its  face  it  appears  to  have  been  properly  executed, 
and  it  has  a  full  attestation  clause.  None  but  the  members  of 
the  family,  all  interested  in  the  will,  and  the  party  named  as  ex- 
ecutor, were  present  at  the  execution.  When  the  proponent  ap- 
peared to  prove  the  will,  less  than  four  months  after  its  execution, 
Mi-.-  Sheridan,  one  of  the  subscribing  witnesses,  in  stating  the 


284  EXECUTION. 

order  of  events,  mentioned  as  the  first  act  the  signing  by  the  wit- 
nesses. On  further  examination  she  was  undecided  as  to  whether 
they  or  the  decedent  signed  first,  and  the  reading  of  the  attesta- 
tion clause  to  her  did  not  aid  her  memory.  Nor  did  she  remem- 
ber seeing  decedent's  signature  when  she  signed.  An  adjourn- 
ment was  granted  to  enable  her  to  further  reflect  on  the  matter, 
and  on  being  recalled  she  stated,  in  answer  to  the  question 
whether  the  signatures  of  the  witnesses  preceded  the  signing  by 
the  decedent,  "  I  think  that  we  signed  first,"  and  she  further 
stated  that  such  was  her  present  conviction.  The  other  witness, 
Mrs.  Vorbach,  could  not  be  produced  on  account  of  illness  and 
an  adjournment  was  granted  in  the  hope  to  procure  her  testi- 
mony. When  it  appeared  to  my  satisfaction  that  she  could  not 
be  produced,  an  order  was  entered  dispensing  with  her  testimony 
and  her  son  proved  her  signature  and  testified  that  his  mother 
was  in  her  last  illness,  and  that  the  disease  from  which  she  has 
suffered  has  affected  her  mind.  It  is  the  law  that,  when  from  the 
lapse  of  time,  the  memory  of  a  witness  cannot  recall  the  events 
that  took  place  on  the  execution  of  a  will,  the  existence  of  an 
attestation  clause  correctly  reciting  the  various  acts  as  they  should 
have  been  done,  will  be  accepted  as  evidence  of  a  valid  execution. 
A  period  of  less  than  four  months  after  the  execution  of  this  will 
hardly  falls  within  the  range  of  the  decisions.  But  as  there  is 
no  question  of  the  existence  of  a  testamentary  purpose  or  the 
good  faith  of  all  the  parties  interested  in  the  proceeding,  and  no 
injustice  will  be  done  thereby,  I  will  admit  the  will  on  the  re- 
citals in  the  attestation  clause. 


In  the  Matter  of  the  Probate  of  the  last  Will  of  William 

G.  Alpaugh,  deceased. 

New  Jersey  Prerogative  Court,  1872. 

(23  N.  J.  Eq.  507.) 

An  appeal  from  decree  of  the  Orphans'  Court  of  Hunterdon 
County. 

The  Ordinary. — The  objection  to  the  will  in  this  case  being 
admitted  to  probate  is,  that  it  does  not  appear  by  proof  that  the 
testator  signed  it  in  the  presence  of  the  witnesses,  or  that  he  ac- 
knowledged the  signature  to  be  his  in  their  presence.     This  is 


THE  ATTESTATION   CLAUSE.  285 

required  by  the  statute,  Nix.  Dig.  1032,  sec.  24,  and  no  other 
evidence  can  be  allowed  to  supply  the  defect.  If  twenty  witnesses 
saw  him  sign  or  heard  him  acknowledge  the  signature,  it  will  not 
supply  the  requirement  of  signing  or  acknowledgment,  in  the 
presence  of  the  persons  whom  he  selected  as  the  legal  witnesses 
of  this  solemn  act.  In  this  case  the  testator  drew  the  whole  will, 
including  the  attestation  clause,  which  declares  that  it  was  signed 
in  the  presence  of  the  witnesses.  The  witnesses  testify  that  after 
Mr.  Alpaugh's  name  was  signed  to  the  will  he  took  it  in  his 
hand,  declared  it  to  be  his  last  will,  and  asked  them  to  sign  it  as 
witnesses.1  Neither  of  them  testifies  that  he  saw  Alpaugh  sign 
it,  or  that  he  acknowledged  the  signature  to  be  his.  Neither  of 
them  says  that  Alpaugh  did  not  sign  it  in  their  presence.  They 
were  not  asked  directly  whether  they  saw  him  sign.  Each  states 
such  facts  as  he  remembers,  and  says  further  that  he  does  not 
recollect  all  that  was  done  or  said. 

In  such  case,  as  in  the  case  of  the  death  of  the  witnesses,  the 
attestation  clause  must  be  taken  as  true,  and  as  proof  of  signature 
in  their  presence.  Most  especially  in  this  case,  where  the  at- 
testation clause  is  in  the  handwriting  of  the  testator,  and  shows 
that  he  knew  the  requirements  of  the  law,  the  presumption  will 
be  that  he  saw  to  it  that  they  were  complied  with.  If  the  attest- 
ing witnesses  had  testified  that  they  did  not  recollect  whether 
the  will  was  signed  in  their  presence,  the  effect  would  be  the 
same.  If  they  had  testified  positively  that  the  will  was  not  signed 
in  their  presence,  hut  was  signed  before  they  came,  their  evidence 
would  not  be  overcome  by  the  certificate  in  the  attestation  clause, 
but  might  be  by  convincing  proof  that  it  was  actually  signed  in 
their  presence. 

In  this  case  the  want  of  recollection,  or  the  want  of  proof,  is 
remedied  by  the  presumption  arising  from  the  attestation  clause, 
aid  is  sufficient  to  wan-ant  the  determination  of  the  Orphans' 
Court  in  admitting  the  will  to  probate,  as  signed  by  the  testator 
in  the  presence  of  the  attesting  witnesses. 
The  decree  musl  be  affirmed. 


1  In  New  York  and  Borne  other  jurisdictions  this  would  constitute  an  ac 
knowledgmenl  of  a  signature  then  already  on  the  will  and  visible.  Baskin 
v.  Baskin,  3<i  X.  V.  in;,  given  ante. 


286  EXECUTION". 

(2).  Where  the  ivitnesses  fraudulently  deny  the  facts. 

The  three  subscribing  witnesses  to  the  will  of  Mr.  Jolliffe,  and 
the  two  surviving  witnesses  to  a  codicil,  all  testified  against  the 
due  execution  of  the  instruments  (on  the  ground  of  mental  inca- 
pacity). Many  others,  not  attesting  witnesses,  testified  to  the 
contrary,  among  them  Mr.  Rupert  Dovey,  the  attorney  who  drew 
the  will.  The  reporter  (Sir  Win.  Blackstone)  says:  "Upon  the 
whole  it  appeared  to  be  a  very  black  conspiracy  to  set  aside  this 
gentleman's  will,  without  any  foundation  whatsoever."  After  a 
trial  of  fifteen  hours  the  jury  were  out  only  five  minutes,  and 
brought  in  a  verdict  establishing  the  will.1  Subsequently  the 
three  subscribing  witnesses  to  the  will  were  convicted  of  perjury, 
and  were  sentenced  each  of  them  to  be  imprisoned  six  months, 
to  stand  twice  in  the  pillory,  with  a  paper  on  their  heads  de- 
noting their  crime,  once  at  Westminster  Hall  Gate,  and  once  at 
Charing  Cross;  and  to  be  transported  to  America  (3  Geo.  III.) 
for  seven  years.  They  afterwards  obtained  a  pardon  in  respect 
to  their  transportation.2 

(3).  Probate  refused  in  spite  of  attestation  clause. 

At  the  end  of  the  will  of  Thomas  Lewis  was  an  attestation 
clause,  signed  by  two  witnesses,  stating  that  "  the  above  written 
instrument  was  subscribed  by  the  said  Thomas  Lewis  in  our  pres- 
ence, and  acknowledged  by  him  to  each  of  us,  and  he  at  the  same 
time  declared  the  above  instrument  so  subscribed  to  be  his  last 
will  and  testament,  and  we  at  his  request  have  signed  our  names 
as  witnesses  hereto."  The  testimony  of  the  two  witnesses  showed, 
however,  that  in  fact  the  signature  of  testator  was  neither  made 
nor  acknowledged  in  their  presence,  and  that  testator  did  not  de- 
clare the  instrument  to  be  his  will.  W.  F.  Allen,  J. :  [The  for- 
mal execution  and  publication]  "cannot,  however,  be  presumed 
in  opposition  to  positive  testimony,  merely  upon  the  ground  that 
the  attestation  clause  is  in  due  form  and  states  that  all  things 
were  done  which  are  required  to  be  done  to  make  the  instrument 
valid  as  a  will."  3 

1  Lowe  v.  Jolliffe,  1  W.  Bl.  365.  5  The  Kin?  v.  Nueys,  1  W.  Bl.  416. 

3  Lewis  v.  Lewis,  11  K  Y.  220  ;  also  Orser  v.  Orser,  24  N".  Y.  51 ;  Tarrant 


THE   ATTESTATION   CLAUSE.  287 

(4).  Probate  granted  in  spite  of  testimony. 
In  the  Hatter  of  Samuel  Cottrell,  deceased. 

New  York  Court  op  Appeals,  1884. 
(95  N.  Y.  329.) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court,  third  department,  entered  upon  an  order  affirming  decree 
of  the  surrogate  of  Rensselaer  County,  admitting  to  probate  the 
will  of  Samuel  Cottrell,  deceased. 

There  was  a  full  attestation  clause,  but  the  two  witnesses  both 
denied  all  its  allegations  and  also  denied  that  they  had  in  fact 
signed  it. 

liuger,  Ch.  J.  (After  considering  the  power  of  the  Court  of 
Appeals  to  re-examine  conclusions  of  fact  reached  by  the  court 
below.)  The  Code  of  Civil  Procedure  has  also  put,  in  the  form 
of  a  statutory  enactment,  a  rule  in  relation  to  the  proof  necessary 
to  show  the  valid  execution  of  a  will  which  had  indeed  before 
then  been  well  settled,  but  had  previously  existed  by  force  of 
adjudication  alone,  viz. :  That  the  due  execution  of  a  will  might 
be  established  by  competent  evidence,  even  against  the  positive 
testimony  of  the  subscribing  witnesses  thereto. 

So  much  of  Section  2620  as  is  material  to  the  point  under  dis- 
cussion reads  as  follows:  "If  such  a  subscribing  witness  has  for- 
gotten the  occurrence,  or  testifies  against  the  execution  of  the 
will,  the  will  may,  nevertheless,  be  established  upon  proof  of  the 
handwriting  of  the  testator  and  of  the  subscribing  witnesses,  and 
also  of  such  other  circumstances  as  would  be  sufficient  to  prove 
the  will  upon  the  trial  of  an  action."  (The  court  hew  discuss 
QumerouB  authorities,  and  consider  and  weigh  the  testimony  of 
the  witnesses  and  the  circumstances  connected  with  the  execu- 
tion.) 

The  surrogate  has  found  as  a  fact  upon  conflicting  yel  compe- 
ted evidence,  thai  the  subscribing  witnesses  to  the  will  in  ques- 
tion in  facl  Bigned  the  attestation  clause. 

We  thne  have  an  holographic  will,  not  only  properly  Bigned  and 


v.  Ware,  reported  in  note,  25  X.  Y.  al  425,  and  cases  cited  ;  Will  of  Meurer, 
4t  Wis  ■•'■II.  and  ca  e  cited  ;  Glover  v.  Smith,  57  I-  'I'-  60  ;  Keithley  v.  Staf- 
ford (111.),  i"  N-  E   Rep  Tin. 


288  EXECUTION. 

executed  by  the  testator,  but  also  signed  by  the  witnesses,  and 
appearing  upon  its  face  to  be  entirely  regular,  and  purporting  to 
have  been  executed  with  all  the  formalities  and  in  the  manner  re- 
quired by  the  law  to  make  a  good  and  valid  will. 

The  witnesses  to  the  will  have,  by  signing  the  attestation  clause, 
certified  to  facts  taking  place  upon  its  execution,  directly  conflict- 
ing with  the  evidence  given  by  them  upon  the  trial.  To  believe 
this  evidence  requires  us  to  suppose  that  the  testator  deliberately 
forged  the  names  of  witnesses  to  his  will  at  a  time  and  under  cir- 
cumstances  when  it  was  just  as  convenient  for  him  to  have  ob- 
tained their  genuine  signatures  thereto.  Upon  the  evidence  the 
surrogate  has  refused  to  give  credit  to  their  testimony,  and  must, 
we  think,  necessarily  have  found,  for  reasons  appearing  sufficient 
to  him,  that  none  of  the  evidence  given  by  them  was  entitled  to 
belief.  (The  court  here  consider  the  intrinsic  improbability  of 
these  witnesses'  testimony,  and  call  attention  to  the  general  pre- 
sumption of  due  execution  arising  from  the  supervision  of  expe- 
rienced persons  familiar  with  the  statutory  requisites  and  with 
the  importance  of  compliance  with  them,  citing  Chambers  v. 
Queen's  Proctor,  2  Curteis  415 ;  In  re  Kellum,  52  N.  Y.  519 ; 
Gove  v.  Gawen,  3  Curteis  151 ;  Peck  v.  Cary,  27  K  Y.  9.) 
[Matter  of  Smith,  39  IN".  Y.  State  Rep.  698 ;  Matter  of  Nelson, 
43  N.  Y.  State  Kep.  30.] 

We  think  that  that  presumption  also  arises  in  this  case.  The  testa- 
tor had  not  only  once  correctly  gone  through  the  ceremony  of  exe- 
cuting a  will,  but  by  drawing  the  attestation  clause  in  question  he 
had  at  the  time  necessarily  brought  before  his  mind  each  one  of 
the  conditions  imposed  by  the  statute  as  necessary  to  its  valid  exe- 
cution. It  is  quite  unreasonable  to  suppose  that  such  a  person 
having  drawn  and  signed  a  will,  and  having  added  thereto  a 
proper  attestation  clause,  should  have  provided  witnesses  there- 
for, and  required  them  to  sign  a  certificate  to  the  effect  that  each 
of  the  required  formalities  had  then  been  observed,  without  also 
providing  for  their  actual  performance.  He  had  knowledge  of 
the  necessity  of  the  act  required,  to  the  validity  of  the  business 
he  was  then  transacting,  and  to  hold  that  he  omitted  it  would 
oblige  us  to  ascribe  to  him  the  intention  of  performing  a  vain  and 
useless  ceremony  at  the  expense  of  time  and  labor  to  himself  and 
the  commission  of  a  motiveless  crime.     The  presumptions  arising 


THE   ATTESTATION   CLAUSE.  289 

from  the  certificate  of  the  subscribing  witnesses,  and  the  supervi- 
sion of  an  experienced  person  that  the  requisite  formalities  were 
complied  with,  are  fortified  by  the  acts  and  conduct  of  the  testa- 
tor. Nearly  three  years  elapsed  between  the  date  of  the  will  and 
the  death  of  the  testator,  and  he  had,  therefore,  ample  time  and 
opportunity  to  supply  any  defects  in  its  execution,  if  any  existed, 
but  at  the  last  moment,  when  the  subject  of  a  will  was  brought  to 
his  attention,  he  evidently  supposed  that  he  had  made  a  valid  tes- 
tamentary disposition  of  his  property. 

It  also  appears  that  it  was  executed  while  the  testator  was  living 
in  the  family  of  the  alleged  witnesses;  that  one  of  them  had 
formerly  acted  in  a  similar  capacity  for  him,  and  that  they  were 
both  persons  who  for  convenience,  as  well  as  from  their  relations 
to  the  testator,  would  naturally  have  been  selected  as  witnesses  to 
a  will  drawn  by  himself,  and  whose  execution  he  personally  super- 
vised. 

We  think  the  various  circumstances  to  which  we  have  referred, 
in  connection  with  the  full  and  regular  attestation  clause  in  the 
handwriting  of  the  testator,  proved  to  have  been  signed  by  the 
witnesses,  were  sufficient  to  authorize  the  finding  by  the  court 
below  establishing  the  will. 

Of  course  no  controversy  can  arise  in  this  case  over  any  ques- 
tion as  to  the  real  intention  of  the  testator  in  the  disposition  made 
by  his  will  of  his  property,  for  not  only  were  his  wishes  deliber- 
ately funned,  but  they  are  recorded  in  his  own  handwriting, 
which  implies  care  and  deliberation  on  his  part  in  framing  its 
provisions  and  directions.  It  is  the  duty  of  the  court  to  carry 
into  effect  a  testator's  intentions  when  they  can  be  discovered, 
provided  they  do  Dot  contravene  any  provision  of  law. 

It  follows  from  these  dews  that  the  judgment  appealed  from 
should  be  affirmed. 

All  concur,  except  h'njxdlo,  J.,  not  voting. 

Judgment  affirmed. 

[Also  Oreer  v.  Orser,  24  N.  Y.  51.] 

19 


290  EXECUTION. 


(5).  JVo  attestation  clause. —  Witnesses  dead. 

In  the  Goods  of  Jane  Thomas     Widow,    deceased),  on 

Motion. 

English  Court  of  Pkobate,  1859. 

(1  Sw.  &  Tr.  255.) 

In  this  case  the  will  of  the  deceased  bore  date  the  10th  of  Oc- 
tober, 1842.  By  it  Jane  Burnet,  wife  of  James  Burnet,  formerly 
Jane  Bishop,  spinster,  was  appointed  executrix.  The  signature 
was  attested  by  three  witnesses,  but  there  was  no  attestation 
clause.     The  signatures  appeared  under  the  word 

-"  Witness, 

"  Benjamin  Franklyn, 
"  John  Skeggs, 
"  Mary  Skeggs." 

B.  Franklyn,  a  spirit  merchant  at  Plymouth,  deposed  on  affi- 
davit that  he  remembered  being  requested  by  the  testatrix  to 
attest  her  signature  to  the  will,  and  that  she  did  sign  her  name 
in  his  presence,  and  that  he  thereupon  subscribed  his  name  in  her 
presence:  "and  further,  that  after  the  interval  of  so  many  years 
he  was  unable  to  recollect  exactly  all  the  circumstances  attending 
his  so  subscribing  the  said  will  ;  but,  as  well  as  he  remembered, 
the  testatrix  and  he  were  the  only  persons  present  at  such  time, 
and  the  signatures  of  John  Skeggs  and  Mary  Skeggs,  which  now 
appear  subscribed  to  the  said  will  immediately  under  his  signa- 
ture, were  not  so  subscribed  in  his  presence.  He  remembered 
that  he  made  a  suggestion  to  the  deceased,  at  the  time  he  sub- 
scribed the  will,  that  another  witness  ought  to  be  present,  but 
what  further  passed  on  the  subject  he  was  unable  to  recollect. 
That  he  had  no  knowledge  whatever  whether  the  testatrix  after 
wards  acknowledged  the  signature  of  the  said  will  in  the  presence 
of  the  said  two  witnesses  whose  names  appeared  subscribed 
thereto,  or  of  the  circumstances  under  which  such  witnesses  so 
subscribed  the  said  will." 

John  Skeggs  and  Mary  Skeggs  were  since  dead.  They  were 
people  of  some  consequence  at  Devonport.  Their  handwriting 
was  spoken  to  by  two  witnesses. 

Dr.  Sjpmks  moved  the  court  to  decree  probate  of  the  will  to 


COMPETENCY   OF   WITNESSES.  291 

the  executrix  therein  named.  He  cited  the  remarks  of  Dr.  Lush- 
ington  in  Burgoyne  v.  Showier,  6  Rob.  Eccl.  Rep.  10  :  "  If  a 
party  is  put  on  proof  of  a  will  he  must  examine  the  attesting 
witnesses.  On  the  present  occasion  there  are  two  subscribed  wit- 
nesses;  if  these  persons  were  dead,  the  law  would  presume  the 
will  to  be  duly  executed,"  etc.  He  submitted,  that  though  Frank- 
lyn's  affidavit  made  his  signature  unavailing,  yet  the  presuirpti  in 
would  now  be  that  the  testatrix  afterwards  duly  acknowledged 
the  signature  in  the  presence  of  Skeggs  and  his  wife,  and  that 
they  duly  subscribed  their  names. 

Sir  C.  Cresswell. — I  cannot  at  present  grant  this  motion.  The 
presumption  which  would  arise  on  the  face  of  this  paper  with  re- 
gard to  the  three  subscribed  names,  is  in  part  rebutted  by  the 
affidavit  of  Franklyn.  Does  the  rest  of  the  presumption  hold 
good  as  to  the  other  names  ?     They  have  not  the  appearance  of 

being  written  in  the  same  ink. 

Cur.  adv.  vult. 

Sir  C.  Cresswell. — I  think  I  may  fairly  assume  that  the  will 

was  duly  executed.     The  first  subscribed   witness  who  survives 

states  in  his  affidavit  that  he  explained  to  the  testatrix  that  two 

witnesses  were  required  to  be  present  at  the  execution  of  a  will, 

and  it  appears  that  some  time  afterwards  the  testatrix  obtained 

the  signatures  of  two  other  witnesses.     It  is  a  fair  presumption, 

that  she  acted  upon  the  information  given  to  her,  and  got  these 

last  two  witnesses  to  attend  in  order  that  she  might  acknowledge 

her  signature  in  their  presence. 

Probate  granted. 

competency  of  witnesses. 

The  Statute  of  Frauds  in  its  provisions  concerning  wills,  called 
for  credible  [subscribing]  witnesses.  It  has  long  been  well  set- 
tled  thai  tlii-  word  "credible,"  or  "creditable,"  is  to  be  taken  in 
the  sense  of  "  competent,"  '  and  is  intended  to  require  as  sub- 
scribing witnesses  to  wills  persons  not  legally  disqualified  from 
testifying  in  courts  of  justice  by  reason  of  mental  incapacity,  in 
terest,  or  the  commission  of  crime,  or  other  cause  disqualifying 

1  Amorv  v  Pellowes,  5  Mi  319;  Taylor  v.  Taylor,  1  Rich.  L.  (S.  C.)C31; 
In  re  Estate  of  Noble,  32   III.  A |»p.  ">:;.">. 


292  EXECUTION. 

them  from  testifying  generally  or  rendering  them  incompetent  in 
respect  of  the  particular  subject  matter  or  in  the  particular  suit.1 

This  subject  is  a  branch  of  the  law  of  evidence  rather  than  of 
the  law  of  wills.  But  it  may  not  be  out  of  place  here  to  state 
the  more  important  principles  concerning  the  competency  of  sub- 
scribing witnesses  to  wills. 

The  word  "credible"  has  generally  been  abandoned,  in  our 
statutes,  in  favor  of  the  word  "  competent."  It  is  clear,  from  the 
test  of  competency  above  stated,  that  it  varies  with  the  varying 
general  laws  in  the  field  of  evidence.  At  common  law,  for  in- 
stance, a  wife  was  not  a  competent  witness  to  a  will  under  which 
her,  husband  was  a  devisee.  But  wherever  the  general  competency 
of  the  wife  has  been  established,  as  a  witness  in  her  husband's 
favor,  it  would  appear  that  she  should  thereby  become  competent 
to  witness  a  will  favorable  to  him.  And  such  has  been  held  to  be 
the  result.3 

The  requirement  of  competency  refers  to  the  date  of  execution 
and  not  to  that  of  testifying  in  court.3  Competency  acquired 
subsequently,  and  before  the  proceedings  for  probate,  will  not 
suffice,  as,  if  a  child,  too  young  to  be  a  competent  witness,  should 
nevertheless  subscribe  the  will  and  should  afterwards,  and  before 
probate,  become  old  enough  to  satisfy  the  requirement  of  compe- 
tency, this  would  not  answer.4  And  so,  also,  if  the  witness  is 
competent  at  the  time  of  execution,  subsequent  loss  of  compe- 
tency, as,  for  example,  by  insanity,  will  not  affect  the  validity  of 
the  will.6 

It  may  also  be  added,  that  an  interest  as  executor,  or  in  other 
purely  fiduciary  capacity,  will  not  render  a  witness  incompetent,6 
though  it  has  sometimes  been  held  that  the  prospect  of  his  com- 
missions  would    give    him    such    an    interest   as   to   disqualify 

1  Robinson  v.  Savage  (111.),  15  N.  E.  850;  Fuller  v.*Fuller,  83  Ky.  345;  Vroo- 
man  v.  Powers,  47  Ohio  St.  191. 

8  Compare  Sullivan  v.  Sullivan,  106  Mass.  474,  with  Hawkins  v.  Hawkins, 
54  la.  443,  both  given  post. 

3  Sears  v.  Dillingham,  12  Mass.  358;  Taylor  v.  Taylor,  1  Rich.  L.  (S.  C.)  531. 
On  this  point  there  has  been  a  divergence  of  opinion  among  the  courts. 

4  See  Carlton  v.  Carlton,  given  post,  concerning  infants  as  witnesses. 
6  Sears  v.  Dillingham,  12  Mass.  358  (361). 

6  Richardson  v.  Richardson,  35  Vt.  238;  see  Sears  v.  Dillingham,  12  Mass. 
358  (360),  Piper  v.  Moulton,  72  Me.  155. 


COMPETENT    WITNESS. — INFANCY. — PRESUMPTION.      293 

him  ; x  hut  it  is  generally  held  that  this  fact  does  not  render  the 
executor  incompetent.3 

Under  the  statutes  of  our  several  States,  many  variations  are 
to  be  found  in  this  general  field.  Usually,  however,  if  persons 
incompetent  on  account  of  interest  under  the  will,  do  nevertheless 
sign  as  witnesses,  the  result  is  that  all  provisions  for  them  in  the 
will  are  annulled,  and  they  are  then  accepted  as  satisfactory  wit- 
nesses. Bat  if  any  such  signers  are  "  supernumeraries," — that  is, 
if  there  are  enough  other  witnesses  to  prove  the  will  without 
them,  then  they  are  not  cut  off  from  the  testamentary  provisions 
in  their  favor.3 

It  is  sometimes  further  provided  that  a  witness  need  not  be 
deprived  of  such  part  of  the  testamentary  provision  for  him  as 
he  would  have  received  if  there  had  been  no  will.4 

Illustrations  of  these  principles,  and  a  statement  of  other  rules 
concerning  competency,  will  be  found  in  the  following  cases. 

Note. 

On  Competency  of  Witnesses,  see  1  Jarman  on  Wills,  70  et 
seq. ;  and  at  p.  71  (Randolph  &  T.'s  Am.  Ed.),  a  note  classifying 
the  American  statutes ;  1  Redf.  252  et  seq. 

COMPETENT  WITNESS.— INFANCY. -PRESUMPTION. 
Carlton  v.  Carlton. 

New  Hampshire  Siimo.mk  Jcdiciai,  Court,  1859. 
(40  N.  H.  14.) 

Doe,  J. — The  statute  of  wills  requires  "  three  or  more  credible 
witnesses,"  and  the  well-settled  construction  of  this  and  other 
similar  Btatutes  is,  thai  the  witnesses  should  be  competent,  or  not 
disqualified,  at  the  time  of  the  attestation  of  the  will,  to  be  sworn 
and  to  testify  in  a  COUrl  of    justice      The  argument  that   attesting 

witnesses  are  regarded  in  law  as  persons  placed  around  the  testa- 
tor, to  protect  him  from  fraud,  and  to  judge  of  liis  capacity,  and 

1  Taylor  v.  Taylor,  I  Rich.  L.  (S,  0.)  581. 
Snyder  v.  Hull,  it  Penn.  St.  64. 

Pot  example,  California  Civil  Code,  8§1282,  1288;  Howell's  Mich.  Ami. 
St.,  .7  6791,  57fl 

Por  example,  Causae  Gen,  St.,  7216,  and  statutes  cited  in  preceding  note. 


294  EXECUTION. 

are  permitted  to  testify  as  to  the  opinions  they  formed  of  his 
capacity,  and  that  it  is  contrary  to  the  policy  of  the  law  to  allow- 
so  important  a  trust  to  be  exercised  by  children,  tends  to  show 
that,  on  account  of  their  peculiar  rights  and  duties,  they  should 
possess  some  other  qualifications  than  those  which  entitle  persons 
to  be  sworn  as  witnesses  in  court;  and  it  might  lead  to  the  con- 
clusion that  they  should  be  experts  in  questions  of  insanity — a 
result  that  would  often  prevent  the  making  of  wills.  Undoubt- 
edly the  statute  was  intended  to  guard  against  fraud  and  to  pro- 
vide means  of  proving  the  mental  condition  of  the  testator.  And 
one  of  the  objects  of  requiring  the  presence  of  witnesses  being  to 
give  them  an  opportunity  to  ascertain  and  judge  of  his  capacity, 
it  would  seem  necessarily  to  follow  that  they  should  be  allowed 
to  testify  the  opinions  which  they  were  specially  appointed  to 
form.  But  whatever  they  are  required  or  authorized  to  do,  they 
are  not  required  to  have  any  other  qualifications  than  those  of 
ordinary  testifying  witnesses.  There  is  nothing  in  the  statute  to 
demand  or  to  justify  any  unusual  definition  of  the  term  "  credible 
witnesses." 

The  general  rule,  in  common-law  trials,  is,  that  the  competency 
of  witnesses  is  to  be  decided  by  the  court,  and  that  the  examina- 
tion of  a  child,  to  ascertain  his  competency  to  be  sworn  as  a  wit- 
ness, is  made  by  the  judge  at  his  discretion.  And  it  is  urged  that 
the  competency  of  the  attesting  witness,  who  was  under  fourteen 
years  of  age  at  the  time  of  the  attestation,  cannot  be  proved  by 
other  witnesses,  but  that  the  determination  of  the  judge,  to  admit 
or  not  admit  him  to  testify,  must  depend  solely  upon  his  own 
examination  of  the  child,  and  that  the  judge  cannot,  by  such  ex- 
amination alone,  at  the  hearing  on  the  probate  of  the  will,  judge 
of  his  competency  at  the  time  of  attestation.  If  this  were  so,  the 
death  of  the  witness  would  have  barred  the  probate  of  the  will, 
although  it  might  have  been  legally  executed.  If  the  attesting 
witnesses  are  competent  at  the  time  of  probate,  they  may  be 
sworn.  Whether  they  were  competent  at  the  time  of  the  attesta- 
tion is  a  question  entirely  distinct  and  separate  from  the  question  of 
their  competency  at  the  time  of  probate.  There  is  no  more  reason 
to  confine  the  judge  of  probate  to  the  examination  of  a  witness 
at  the  probate,  to  determine  whether  such  witness  were  competent 
at  the  time  of  attestation,  than  to  limit  the  judge  to  the  testi- 


COMPETENT   WITNESS. — INFANCY. — PRESUMPTION.      295 

mony  of  one  witness  upon  any  other  question.  "Whether,  at  the 
probate,  an  attesting  witness  is  incompetent  to  be  sworn,  by  reason 
of  deficiency  of  understanding  arising  from  immaturity  of  in- 
tellect, insanity,  or  intoxication,  is  a  question  to  be  determined  by 
the  judge  on  proper  evidence.  More  evidence  from  other  wit- 
nesses may  be  required  to  determine  whether  such  incompetency 
existed  at  the  attestation,  than  to  determine  whether  it  exists  at 
the  probate,  because  the  appearance  of  the  witness  whose  compe- 
tency is  questioned  may  furnish  little  or  do  evidence  of  his  condi- 
tion at  a  former  time.  But  the  question  of  his  competency  is 
equally  open,  in  both  cases,  to  be  settled  by  such  evidence  as  can 
be  produced.  And  when  the  objection  to  his  competency  at  the 
attestation  is  founded  upon  alleged  defect  of  understanding,  it  is 
equally  proper  to  receive  the  testimony  of  other  witnesses  whether 
the  defect  is  alleged  to  have  arisen  from  immaturity,  insanity,  or 
intoxication.  He  is  presumed  to  have  been  competent,  until  the 
contrary  appears.  Without  any  evidence  concerning  him,  he  is 
not  presumed  to  have  been  under  the  age  of  fourteen  years,  or 
insane,  or  intoxicated.  If  he  were  alive  and  present  at  the  pro- 
bate, his  appearance  might  sufficiently  indicate  that  he  was  then 
under  fourteen  years  of  age,  or  that  he  was  an  idiot,  and  that, 
consequently,  he  could  not  have  been  competent  at  the  attestation. 
But  if  he  were  dead,  or  if  he  were  alive,  and  could  not  be  pro- 
duced at  the  probate,  the  burden  of  proving  him  to  have  been  less 
than  fourteen  years  old,  like  the  burden  of  proving  him  to  have 
been  insane  or  intoxicated,  would  be  upon  the  party  asserting  his 
incompetency.  Whether,  at  the  probate,  he  were  dead  or  alive, 
proof  that  at  the  attestation  he  was  under  the  age  of  fourteen 
would  overcome  the  presumption  of  competency,  and  make  a 
priim'i  facie  case  againsl  the  due  execution  of  the  will,  because 
children  under  that  age  are  presumed  to  be  incompetent.  But 
such  evidence  would  only  substitute  one  presumption  for  another. 
There   IS   DO  age  within  which   children   are  absolutely  excluded. 

The  degree  of  understanding  which  is  the  tesl  of  competency  is 
not  developed  in  all  at  the  same  age,  and  it  would  be  unreasonable 
to  establish  any  arbitrary  and  conclusive  standard  of  years.  Bui 
it  is  natural  thai  a  presumption  should  be  drawn  from  age,  and  it 
is  just   thai   Buch  presumption  may  be  rebutted.     Persons  over 

fourteen  years  of  age  may  be  incompetent,  from  defeel  "I    under- 


296  EXECUTION. 

standing,  and  persons  under  that  age  may  be  competent,  and  it 
is  as  proper  that  the  truth  should  be  shown  in  the  one  case  as 
in  the  other.  In  proceedings  in  the  probate  court,  whether  the 
attesting  witnesses  of  a  will  are  then  competent  to  testify,  is  a 
preliminary  question  concerning  the  admission  of  evidence,  to  be 
determined  before  they  are  sworn  ;  but  whether  they  were  com- 
petent attesting  witnesses  at  the  time  of  attestation  is  a  question 
concerning  the  due  execution  of  the  will,  to  be  decided  after  they 
are  sworn.  If  they  are  competent  to  testify  at  the  probate,  it 
would  be  no  more  an  objection  to  their  being  sworn,  that  they 
were  incompetent  at  the  attestation,  than  that  they  had  been  in- 
competent at  any  other  time.  They  may  be  needed  to  give  tes- 
timony other  than  that  usually  given  by  attesting  witnesses.  In 
a  suit  at  common  law,  where  a  witness  is  called  to  prove  a  past 
transaction,  it  is  no  objection  to  his  being  sworn  that  at  the  time 
of  the  transaction  he  was  incompetent  to  understand  it,  on  account 
of  blindness,  deafness,  immaturity,  insanity,  or  intoxication.  The 
question  of  his  ability  at  the  time  of  the  transaction  to  understand 
it,  is  for  the  jury.  So  if  a  will  were  to  be  proved  before  a  court 
and  jury,  the  qualifications,  at  the  time  of  the  trial,  of  the  persons 
offered  to  testify,  would  be  passed  upon  by  the  court,  and  the 
qualifications,  at  the  time  of  the  execution  of  the  will,  of  the 
persons  who  attested  and  subscribed  it  in  the  testator's  presence, 
would  be  passed  upon  by  the  jury.  The  only  difficulty  or  con- 
fusion arises  from  the  fact  that  both  of  these  classes  of  persons 
are  called  witnesses,  both  classes  may  be  composed  of  the  same 
persons,  and  both  are  required  to  possess  the  same  qualifications 
at  different  times. 

In  this  case  one  of  the  witnesses  having  been  under  fourteen 
years  of  age,  is  presumed  to  have  been  incompetent,  but  the 
executor  may  have  an  opportunity  to  rebut  that  presumption. 


COMPETENT    WITNESS. — LEGATEE.  297 


COMPETENT  WITNESS.— LEGATEE.— TESTIMONY  AGAINST 

INTEREST. 

Smalley  v.   Smalley. 

Make  Supreme  Judicial  Court,  1880. 
(70  Maine  545.) 

Facts  agreed. 

Appleton,  C.  J. — This  is  an  appeal  from  a  decree  of  the  judge 
of  probate  disallowing  the  will  of  Archelans  Smalley. 

Bart  lv.  Smalley,  a  son  of  the  testator  and  a  legatee  under  the 
will  to  the  amount  of  one  dollar,  was  an  attesting  witness  to  the 
same.  It  is  conceded  that  had  there  been  no  will  his  interest  as 
heir-at-law  would  have  been  greater  than  that  under  the  pro- 
vi.-ions  of  the  will. 

The  will  is  contested  on  the  ground  that  he  was  not  a  compe- 
tent witness. 

The  statute  relating  to  the  attestation  of  wills  has  undergone 
various  verbal  changes  in  the  different  revisions  of  the  statutes. 

By  the  statute  of  1821,  c.  38,  see.  2,  a  will  to  be  valid  must 
"be  attested  and  subscribed  in  the  presence  of  the  testator  by 
three  credible  witnesses." 

In  the  revision  of  1857,  c.  74,  sec.  1,  a  will  to  be  valid  must 
be  subscribed  "  by  three  disinterested  and  credible  attesting  wit- 
nesses." 


In  1859,  by  c.  120,  section  first  of  c.  74  was  amended  by  strik- 
ing nut  the  words  "  disinterest  ed  and,"  and  adding  thereto  "not 
beneficially  interested  under  the  provisions  of  the  will." 

In  the  revision  of  1871,  c.  74,  sec.  1,  the  words  "  the  provisions 
of  woe  Btricken  out.  so  that  now  a  will  is  required  to  he  wit- 
nessed "by  throe  credible  attesting  witnesses  not  beneficially  in- 
terested under  said  will." 

By  a  series  of  decisions  in  England  and  in  this  country  it  has 
been  determined  that  the  word  "  credible  "  was  used  as  the  equiva- 
lent of  "competent,"  so  that  the  question  in  such  case  is  whether 
the  attesting  witness  was  a  competent  witness.  Warren  v.  Baxter, 
48  Maine  193;  Hawes  v.  Humphrey,  (.»  Pick.  361;  Haven  v. 
Howard,  23  Pick.  L0  ;  Carlton  v.  Carlton,  40  V  II.  11. 

Now,  in  thie  case  Bar!  K.  Smalley  is  not  interested  to  sustain 
the  will,  but  rather  in  defeat  it.     When  a  witness  is  produced  to 


298  EXECUTION. 

testify  against  his  interest,  the  rule  that  interest  disqualifies  does 
not  apply.  1  Greenl.  Ev.,  sec.  410.  A  legatee,  one  of  several 
heirs-at-law  of  a  testator,  the  validity  of  whose  will  is  in  question, 
may  be  called  as  a  witness  in  support  of  a  will,  when  his  interest 
is  manifestly  adverse  to  that  of  the  party  calling  him.  Clark  v. 
Vorce,  19  Wend.  232.  So,  in  Sparhawk  v.  Sparhawk,  10  Allen 
155,  an  heir-at-law,  who  is  disinherited  by  the  will,  is  a  com- 
petent witness  in  its  support.  It  is  against  his  interest  to  sup- 
port the  will,  and  whether  entirely  or  partially  disinherited,  the 
same  rule  must  apply  so  long  as  it  is  his  interest  to  defeat  the 

will. 

So  if  it  stand  indifferent  to  the  witnesses,  whether  the  will, 
under  which  they  are  legatees,  and  to  which  they  are  witnesses, 
be  valid  or  not,  the  witnesses,  though  legatees,  are  "  credible." 
10  Bac.  Abr.  525  of  Wills  D.  When  an  attesting  witness  would 
take  the  same  interest  under  a  former  will  to  which  he  was  not 
a  witness,  as  under  i  later  will,  he  stands  indifferent  in  point  of 
interest,  and  is  a  good  witness  to  prove  the  latter  will.  3  Stark. 
Ev.  1692. 

It  is  apparent  that  Bart  K.  Smalley,  before  any  change  of  the 
statute  of  1821,  was  a  credible,  that  is,  a  competent  witness,  be- 
cause his  interest  would  be  adverse  to  the  will. 

When  the  word  "  disinterested  "  was  inserted  in  the  statute,  as 
opposed  to  interested,  the  result  perhaps  might  be  to  exclude  an 
attesting:  witness  whose  interest  it  was  to  defeat  the  will. 

But  whether  so  or  not,  when  that  word  was  stricken  out,  and 
the  attesting  witness  was  required  to  be  one  not  beneficially  in- 
terested under  the  will,  the  obvious  intention  was  to  exclude  those 
who  were  to  receive  a  benefit  under  the  will,  not  those  who  were 
pecuniarily  losers  by  its  provisions.  "  The  reason  why  a  legatee 
•  is  not  a  witness  for  a  will  being  because  he  is  presumed  to  be 
partial  in  swearing  for  his  own  interest ";  that  reason  ceases  to 
exist  when  his  interest  is  dissevered  by  such  will.  Oxenden  v. 
Penrise,  2  Salk.  691. 

One  who  is  neither  interested  to  defeat  or  sustain  the  will,  may 
well  be  deemed  disinterested.  An  heir-at-law,  who  is  disinherited 
in  whole  or  in  part,  is  not  disinterested  in  the  result,  for  he  has  an 
interest  to  defeat  the  will.  Hence  he  is  not  disinterested  in  the 
result. 


COMPETENT   WITNESS. — WIFE   OF  DEVISEE.  299 

The  change  of  language  was  to  remedy  or  rather  prevent  such 
conclusion.  The  witness  beneficially  interested  under  the  will 
was  one  gaining  by  and  under  its  provisions.  But  an  attesting 
witness  who  is  called  to  establish  a  will  by  which  he  is  divested 
of  his  inheritance  can  hardly  be  regarded  as  beneficially  interested 
by  it,  and  so  interested  to  maintain  it.  One  losing  an  estate  by  a 
will  under  which  he  is  a  legatee  for  a  cent  or  a  dollar,  cannot  in 
any  ordinary  use  of  language  be  considered  as  a  gainer — or  bene- 
ficially interested,  unless  a  loss  is  determined  to  be  a  gain.  As  is 
well  remarked  by  Bigelow,  C.  J.,  in  Sparhawk  v.  Sparhawk,  re- 
ferring to  Haven  v.  Hilliard,  23  Pick.  10,  where  it  was  said  to  be 
held  that  a  witness  might  be  incompetent  when  his  interest  was 
adverse  to  the  validity  of  the  will :  "  certainly  so  far  as  it  seems 
to  support  the  proposition  that  an  heir-at-law,  who  is  disinherited 
in  part  or  in  whole  by  will,  is  incompetent  as  an  attesting  witness, 
the  case  is  contrary  to  well-established  principles,  and  must  be 
overruled." 

Undoubtedly,  the  object  in  giving  this  trivial  legacy  was  to 
guard  against  the  witness  taking  a  portion  of  the  estate  under  the 
provisions  of  sec.  9,  by  which  a  child  omitted  in  the  will  may 
have  its  share  of  the  estate,  unless  such  omission  was  intentional, 
or  such  child  had  had  its  due  proportion  of  the  estate  during  the 
life  of  the  testator. 

The  decree  of  the  judge  of  probate  is  reversed, 
and  a  decree  is  to  be  entered  that  the  will  be 
affirmed. 

Walton,  Barrows,  Danforth,  Libbey,  and  Symonds,  JJ.,  con- 
curred. 

[Also  Campbell  v.  Campbell  (III.),  22  N.  E.  620.] 

COMPETENT   WITNESS.— WIPE  OF  DEVISE] 
Sullivan  v.  Sullivan. 

Massachisi  ii-  Sltukmb  Judicial  Court,  1871. 

(106  Mass.  -IT:..) 

Gray,  J. — This  is  an  appeal  from  a  decree  of  Mr.  Justice 
\\  ells,  by  which  a  decree  of  the  probate  court,  allowing  as  the 
will  oi  Margaret  Sullivan  an  instrumi  nl  which  contained  a  devise 

to  Thomas  Sullivan,  and  to  which  his  wife  was  one  of  the  three 


300  EXECUTION. 

attesting  witnesses,  was  reversed  ;  and  the  only  question  is, 
whether  upon  these  facts  she  was  a  competent  attesting  witness 
to  the  will. 

By  the  law  of  this  Commonwealth,  a  will  must  be  attested  by 
three  competent  witnesses,  that  is  to  say,  witnesses  who  at  the 
time  of  the  attestation  would  be  competent  by  the  rules  of  the 
common  law  to  testify  concerning  the  subject  matter.  Hawes  v. 
Humphrey,  9  Pick.  350 ;  Rev.  Sts.,  c.  62,  sec.  6,  and  commission- 
ers'' note ;  Gen.  Sts,,  c.  92,  sec.  6  ;  Sparhawk  v.  Sparhawk,  10  Al- 
len 155,  150.  And  "  all  beneficial  devises,  legacies,  and  gifts 
made  or  given  in  any  will  to  a  subscribing  witness  thereto,  shall 
be  wholly  void,  unless  there  are  three  other  competent  witnesses 
to  the  same."     Gen.  Sts,,  c.  92,  sec.  10. 

It  is  admitted  that  a  wife  cannot  be  deemed  a  competent  wit- 
ness to  a  will  containing  a  valid  devise  to  her  husband.  But  it  is 
contended  that,  within  the  reason  and  effect  of  the  section  last 
quoted,  a  devise  to  her  husband  is  a  beneficial  devise  to  her,  and 
is  therefore  void,  leaving  her  a  competent  attesting  witness  to  the 
will,  and  the  will  itself  valid  in  all  other  respects.  And  this  po- 
sition, though  doubted  by  a  majority  of  the  Supreme  Court  of 
Connecticut  in  Fortune  v.  Buck,  23  Conn.  1,  is  supported  by 
earlier  decisions  in  New  York  and  Maine.  Jackson  v.  Woods,  1 
Johns.  Cas.  163;  Jackson  v.  Durland,  2  Johns.  Cas.  311;  Wins- 
low  v.  Kimball,  25  Maine  493. 

But  with  great  respect  for  the  learning  and  ability  of  the  courts 
which  made  those  decisions,  and  after  carefully  weighing  the  ar- 
guments in  support  of  the  construction  contended  for,  we  are 
unanimously  of  opinion  that  it  is  founded  rather  upon  a  conjec- 
ture of  the  unexpressed  intent  of  the  legislature,  or  a  considera- 
tion of  what  they  might  wisely  have  enacted,  than  upon  a  sound 
judicial  exposition  of  the  statute  by  which  their  intent  has  been 
manifested.  The  only  devises  which  the  statute  declares  to  be 
void  are  beneficial  devises  to  a  subscribing  witness.  It  does 
not  avoid  even  a  devise  to  a  subscribing  witness,  which  gives  him 
no  beneficial  interest,  as,  for  instance,  a  devise  to  an  execu- 
tor, for  the  exclusive  benefit  of  other  persons.  Wyman  v. 
Symmes,  10  Allen  153 ;  1  Jarman  on  Wills,  65.  It  does  not 
avoid  any  devise  to  and  for  the  benefit  of  any  person  other 
than  a  subscribing  witness,  even  if  a  subscribing  witness  would 


COMPETENT   WITNESS. — WIFE   OF   DEVISEE.  301 

incidentally  take  some  benefit  from  the  devise.  In  order  to 
maintain  the  position  contended  for,  it  would  be  necessary  to 
declare  void,  not  merely  the  interest  which  the  wife,  who  was  a 
subscribing  witness,  would  take,  by  way  of  dower  or  otherwise, 
in  the  property  devised  to  her  husband,  but  also  the  whole  devise 
to  and  for  the  benefit  of  the  husband  himself,  who  was  not  a  sub- 
scribing witness,  and  whose  estate  the  statute  does  not  assume  to 
reach. 

Our  conclusion  is  fortified  by  a  consideration  of  the  history  of 
the  legislation  upon  this  subject  in  England  and  in  this  Common- 
wealth. 

The  English  statute  of  frauds  required  wills  devising  lands  to 
be  attested  and  subscribed  in  the  presence  of  the  devisor  by  three 
or  four  credible  witnesses.  St.  29  Car.  II.,  c.  3,  sec.  5.  And  that 
provision  was  re-enacted  here  in  the  first  year  of  the  Province. 
Prov.  St.  4  W.  &  M.  (1692-3),  c.  15,  sec.  3;  1  Mass.  Prov.  Laws 
(State  ed.)  46  ;  Anc.  Chart.  235. 

In  Holdfast  v.  Dowsing,  2  Stra.  1253,  where  a  testator  charged 
all  his  estate,  real  and  personal,  with  legacies  to  one  of  the  sub- 
scribing witnesses  and  to  his  wife,  and  with  an  annuity  to  the 
wife,  the  Court  of  King's  Bench  held  that  the  statute  of  frauds 
certainly  meant  that  the  "  credible  witnesses"  should  not  be  such 
as  claimed  a  benefit  by  the  will ;  and  that,  even  if  the  tender  to 
the  husband,  at  the  trial,  of  the  amount  of  the  two  legacies,  would 
remove  the  objection  on  that  ground  (which  the  court  thought  it 
would  not),  yet  the  charge  upon  the  real  estate  of  the  annuity  to 
the  wife  made  the  husband  an  incompetent  witness.  Although 
the  doctrine  as  to  the  legacies  has  been  since  controverted  in  Eng- 
land upon  the  ground  that  the  competency  of  the  witnesses  was 
t<>  be  determined  at  the  time  of  the  proof,  and  not  at  that  of  the 
execution  of  the  will,  the  incompetency  of  either  husband  or  wile 
to  be  ;i  witness  to  a  devise  to  the  other,  which  the  witness  could 
not  release,  has  never  been  doubted.  Windham  v.  Chetwynd,  1 
Burr.  414,  424;  s.  c.  1  W.  Bl.  95,  100;  Bui.  N.  I'.  265.  The 
case  of  Holdfast  v.  Dowsing  was  taken  by  writ  of  error  to  the 
exchequer  chamber,  and  after  argument  and  before  judgment 
there  was  compromised  by  the  parties;  and  gave  occasion  to  the 
St.  of  2:,  Geo.  II..  e.  6;  1  W.  HI.  8;  I  Ves.  Sen.  503;  2  Bl.  Com. 
377.     The  reason  of  this,  as  stated   by  Sir  William  Blackstone  in 


302  EXECUTION. 

his  Commentaries,  was,  that  the  determination  in  the  King's 
Bench  'k  alarmed  many  purchasers  and  creditors,  and  threatened 
to  shake  most  of  the  titles  in  the  kingdom  that  depended  upon 
devises  by  will  ";  because  it  "  would  not  allow  any  legatee,  nor  by 
consequence  a  creditor,  where  the  legacies  were  charged  on  the 
real  estate,  to  be  a  competent  witness  to  the  devise." 

The  St.  of  25  Geo.  II.,  c.  6,  accordingly  provided,  in  sec.  3, 
that  to  the  execution  of  wills  already  made  any  attesting  witness 
to  whom  any  legacy  was  given,  whether  charged  upon  lands  or 
not,  might  be  admitted  as  a  witness,  upon  payment,  release,  or 
tender  of  his  legacy ;  and,  by  sees.  1,  2,  that  in  future  wills  any 
attesting  witness  "  to  whom  any  beneficial  devise,  legacy,  estate, 
interest,  gift,  or  appointment  of  or  affecting  any  real  or  personal 
estate  "  (except  charges  on  lands  for  payment  of  debts)  "  shall  be 
thereby  given  or  made,"  should  be  admitted  as  a  witness  to  the 
will,  within  the  intent  of  the  statute  of  frauds,  and  "  such  devise, 
legacy,  estate,  interest,  gift,  or  appointment  shall,  so  far  only  as 
concerned  such  person  attesting  the  execution  of  such  will,  or  any 
person  claiming  under  him,  be  utterly  null  and  void  ";  and  that 
charges  of  debts  upon  lands  should  not  make  any  creditor  an  in- 
competent witness.  All  these  provisions  were  re-enacted  in  our 
St.  of  1783,  c.  24,  sees.  11-13 ;  and  the  provision  of  St.  25  Geo. 
II.,  c.  6,  sec.  3,  and  St.  1783,  c.  24,  sec.  13,  for  removing  the  in- 
terest of  a  witness  by  payment,  release,  or  tender,  was  omitted 
in  the  revision  of  our  statutes  in  1836.  But  neither  the  St.  of  25 
Geo.  II.,  nor  the  St.  of  1783,  contained  any  provision  as  to  de- 
vises to  the  wife  or  husband  of  an  attesting  witness,  notwithstand- 
ing the  general  attention  which  had  been  called  to  the  subject  by 
the  case  of  Holdfast  v.  Dowsing. 

In  1822,  a  case  was  brought  before  the  Court  of  King's  Bench, 
in  which  a  testator  devised,  upon  the  determination  of  an  estate 
for  life,  an  estate  in  fee  to  the  wife  of  one  of  the  attesting  wit- 
nesses, and  the  wife  died  before  the  determination  of  the  life 
estate.  It  was  argued,  that,  if  before  the  St.  of  Geo.  II.  the  husband 
would  have  been  an  incompetent  witness,  the  clear  intent  of  that 
statute  was  to  restore  the  competency  of  the  attesting  witness  in 
all  cases  of  benefit  arising  to  him  under  the  will,  and  to  avoid  the 
will  "  so  far  only  "  as  concerned  the  person  attesting  the  execu- 
tion, or  any  person  claiming  under  him ;  and  since  that  statute, 
therefore,  no  will  could  be  void  by  reason  of  interest  arising  un- 


COMPETENT   WITNESS.— WIFE   OF  DEVISEE.  303 

der  it  to  any  attesting  witness,  further  than  regarded  the  interest 
of  such  witness  or  any  person  claiming  under  him  ;  and  conse- 
quently the  will  was  duly  attested.  To  which  it  was  answered 
that  the  St.  of  Geo.  II.  applied  only  to  cases  where  the  interest 
taken  under  the  will  was  destroyed  by  the  statute  itself;  that  the 
husband  took  no  estate  under  the  will,  and  by  operation  of  law 
he  in  right  of  his  wife  derived  a  beneficial  interest  from  that 
estate,  which  they  might  have  sold  during  her  life,  and  which 
would  have  given  him  an  estate  by  the  curtesy  if  she  had  survived 
the  life  tenant ;  but  that  the  estate  of  the  wife  was  not  destroyed 
by  the  statute,  and  consequently  the  derivative  beneficial  interest, 
which  the  husband  took  in  right  of  his  wife  only,  was  not  extin- 
guished ;  and  that,  independently  of  the  question  of  interest,  it 
was  a  general  rule  that  a  husband  or  wife  could  not  in  any  case 
be  a  witness  for  the  other,  as  was  held  in  Davis  v.  Dunwoody, 
4  T.  R  678.  And  the  court  was  of  opinion  that  the  will  wTas  not 
duly  attested.  Hatfield  v.  Thorp,  5  B.  &  Aid.  589.  The  point 
thus  adjudged  upon  the  application  of  the  St.  of  Geo.  II.  is 
summed  up  by  Mr.  Jarman  as  follows:  "That  it  applied  only 
when  the  witness  took  a  direct  interest  under  the  will,  and  not 
when  it  arose  consequentially.  Thus  in  Hatfield  v.  Thorp,  where 
one  of  the  three  attesting  witnesses  to  a  will  was  a  husband  of  a 
devisee  in  fee  of  a  freehold  estate,  and  would  jure  uxoris  have 
derived  an  interest  in  the  lands,  it  was  held  that  the  devise  was 
not  within  the  statute,  and  consequently  that  the  attestation  was 
insufficient."  And  such  continued  to  be  the  law  in  England 
until  1837,  when  the  St.  of  1  Vict.,  c.  26,  extended  the  disqual- 
ification to  take  beneficially  under  the  will  to  the  husband  or  wife 
of  the  attesting  witness.  1  Jarman  on  Wills,  65-67.  [nneitherof 
the  revisions  of  our  own  statutes  in  1836  and  1860,  is  any  express 
provision  introduced  upon  this  point.  Rev>  Sts.,  c.  62,  sec.  6 ; 
Gen.  St-.,  c.  92,  sec.  <'».  And  the  statutes  removing  the  objec- 
tions to  the  competency  of  witnesses  on  the  grounds  of  interesl 
and  of  tli.'  relation  of  husband  and  wife  are  expressly  declared 
not  to  apply  to  attesting  witnesses  to  a  will  or  codicil.  Gen.  Sts., 
c.  131,  sec.  15;  St.  |s;o.  c.  :;'.»::,  sec.  2. 

The  resull   is,  thai  the  decree  reversing  the  decree  of  the  pro- 
bate '•ourt  is  to  be  affirmed,  and  the 

W'll.l.     NOT     AltMITTKD    To     I'litill  \  IK. 

[Compare  the  following  two  cases.] 


304  EXECUTION. 

COMPETENT  WITNESS.— WIFE  OF  LEGATEE. 
Hawkins  v.  Hawkins  et  al. 

Iowa  Supreme  Court,  1880. 
(54  la.  443.; 

Rothroclc,  J. — W.  H.  Hawkins  was  directly  interested  in  the 
will  as  a  legatee,  and  being  a  subscribing  witness  thereto  he  could 
derive  no  benefit  therefrom,  unless  there  were  two  other  competent 
and  disinterested  witnesses.  Section  2327  of  the  Code  provides 
that,  "  no  subscribing  witness  to  any  will  can  derive  any  benefit 
therefrom  unless  there  be  two  disinterested  and  competent  wit- 
nesses to  the  same." 

The  only  question  to  be  determined  then  is,  was  T.  C.  Haw- 
kins, the  wife  of  W.  H.  Hawkins,  a  disinterested  and  competent 
witness?  That  she  was  a  competent  witness  in  the  general  sense 
cannot  be  disputed.  By  section  3636  of  the  Code  it  is  provided 
tliat  ''every  human  being  of  sufficient  capacity  to  understand  the 
obligation  of  an  oath  is  a  competent  witness  in  all  cases,  both  civil 
and  criminal,  except  as  herein  otherwise  declared."  A  married 
woman,  then,  is  a  competent  subscribing  witness  to  a  will.  She 
is  not  within  any  of  the  exceptions  contained  in  the  Code.  If  it 
be  said  that  she  is  not  competent  to  establish  that  part  of  the  will 
which  makes  her  husband  a  legatee,  the  answer  is,  by  section  3641, 
the  husband  or  wife  are,  in  all  civil  and  criminal  cases,  competent 
witnesses  for  each  other. 

Is  the  wife  a  disinterested  witness?  No  person  offered  as  a 
witness  is  incompetent  by  reason  of  his  interest  in  the  'event  of 
the  action  or  proceeding,  except  in  certain  cases.  Code,  sec.  3638, 
This  section  is  qualified  by  section  2327,  which  requires  that  a 
legatee  or  devisee,  who  is  a  subscribing  witness  to  a  will,  can  de- 
rive no  benefit  therefrom  unless  there  be  two  disinterested  and 
competent  subscribing  witnesses.  Our  statute  nowhere  defines 
the  interest  which  disqualifies  a  witness.  See  the  general  statute 
upon  the  subject.  J^o  such  definition  was  necessary,  because,  as 
we  have  seen,  interest  does  not,  in  general,  disqualify.  We  are, 
then,  to  inquire  whether,  under  the  common  law,  modified  by 
our  statute  making  the  wife  a  competent  witness,  has  she  such  an 
interest  in  the  legacy  given  by  the  wrill  to  her  husband  as  to  ex- 
clude her  as  a  witness  ?     In  1  Greenleaf  on  Evidence,  sec.  386, 


COMPETENT  WITNESS. — WIFE  OF  LEGATEE.      305 

it  is  said :  "  This  disqualifying  interest,  however,  must  be  some 
leo-al,  certain,  and  immediate  interest,  however  minute,  either  in 
the  event  of  the  cause  itself  or  in  the  record  as  an  instrument 
of  evidence  in  support  of  his  own  claims  in  a  subsequent  action. 
It  must  be  a  legal  interest,  as  distinguished  from  the  prejudice  or 
bias  resulting  from  friendship  or  hatred,  or  consanguinity,  or  any 
other  domestic  or  social,  or  any  official  relation,  or  any  other  mo- 
tives by  which  men  are  generally  influenced ;  for  these  go  to  the 

credibility."  .... 

Again,"in  section  390,  it  is  said :  "  The  true  test  of  the  interest 
is,  that  he  will  either  gain  or  lose  by  the  direct  legal  operation 

and  effect  of  the  judgment It  must  be  a  present,  certain, 

and  vested  interest,  and  not  an  interest  uncertain,  remote,  or  con- 
tingent."    See,  also,  Cutter  v.  Fanning,  2  Iowa  580. 

We  think  that  by  these  rules  the  wife  was  a  disinterested  wit- 
ness. She  had  no  present,  certain,  and  vested  interest  in  the 
legacy  given  to  her  husband.  It  was  remote  and  contingent.  It 
will  be  observed  that  this  is  not  a  devise  of  real  estate.  The  will 
contemplates  that  whatever  real  estate  there  may  be  shall  be  sold 
to  pay  the  legacies.  Now  the  wife  has  no  present,  vested  interest 
in  such  a  legacy  to  the  husband.  It  is  his  own  to  dispose  of  at  his 
pleasure,  and  there  are  many  contingencies  which  may  intervene 
to  prevent  the  wife  from  ever  acquiring  any  part  of  it. 

We  think  that  the  wife  was  a  competent  and  disinterested  wit- 
ness, and  that  the  court  erred  in  excluding  her  testimony  as  ap- 
plicable to  the  legacy  of  her  husband. 

Reversed. 

[Compare  the  preceding  and  following  cases.] 

COMPETENT   WITNESS.— WIFE    OF    LEGATEE. 
Winslow  v.  Kimball. 

Maink  Supkkme  Judicial  Court,  1846. 
(25  Maine  498. ) 

The  opinion  of  the  court  was  drawn  up  by 
WM6mcmfC.J.— Thisisan  appeal  from  thedecreeof  the  judge 
of  probate,  for  tin-  county,  approving  the  will  of  A..  <!  Winslow, 
deceased.     The  instrumenl  was  subscribed  as  usual  by  three  at- 
testing witnesses.     Bui  one  <>i'  them  was  the  wife  of  h  Legatee  in 
20 


306  EXECUTION. 

the  will.     And  it  is  insisted,  that  this  is  not  a  case  within  the  Rev. 
Stat.  c.  92,  sec.  5,  rendering  bequests  to  subscribing  witnesses  void, 
as  the  wife  was  not  a  legatee ;  and  it  must  be  admitted,  that,  nomi- 
nally, she  was  not ;  and,  upon  a  construction  strictly  literal,  the 
ground  relied  upon  might  be  tenable.     But  statutes  are  to  receive 
such  a  construction  as  must  evidently  have  been  intended  by  the 
legislature.     To  ascertain  this  we  may  look  to  the  object  in  view  ; 
to  the  remedy  intended  to  be  afforded ;  and  to  the  mischief  in- 
tended to  be  remedied.     The  object  in  view  in  the  provision  in 
question  clearly  was  to  prevent  wills  from  becoming  nullities,  by 
reason  of  any  interest  in  witnesses  to  them,  created  entirely  by 
the  wills  themselves.     No  one  can  doubt,  if  it  had  occurred  to  the 
legislature,  that  the  case  before  us  was  not  embraced  in  the  enact- 
ment,  that  it  would  have  been  expressly  included.     It  was  a  mis- 
chief of  the  precise  kind  of  that  which  was  provided  against ;  and 
we  think  may  be  regarded  as  virtually  within  its  category. 

Accordingly,  in  New  York,  where  the  statutory  provision,  in 
this  particular,  is  the  same  as  in  this  State,  a  devise  or  legacy  to 
the  husband  or  wife,  the  other  being  a  witness  to  the  will  be- 
queathing it,  is  held  to  be  void,  upon  the  ground,  as  expressed  by 
one  of  the  judges  of  the  court  there  :  "  that  the  unity  of  husband 
and  wife,  in  legal  contemplation,  is  such,  that,  if  either  be  a  wit- 
ness to  a  will,  containing  a  devise  or  legacy  to  the  other,  such 
devise  or  legacy  is  void,  within  the  intent  of  the  statute  ";  and 
upon  the  ground,  that  the  statute  concerning  wills  should  receive 
a  liberal  construction,  and  one  consistent  with  common  sense. 
Jackson  v.  Wood,  1  Johns.  Cas.  163;  Jackson  v.  Durland,  2  lb. 
314. 

The  decree  of  the  Judge  of  Prolate  affirmed. 

[Compare  the  preceding  two  cases.] 

COMPETENT    WITNESS.— MEMBER    AND     PEWHOLDER    IN     A 

CHURCH   BENEFICIARY. 

Warren  v.  Baxter. 

Maine  Supreme  Judicial  Court,  1859. 
(48  Maine  193.) 

On  agreed  statement.     [Under  the  will  of   James  Warren, 
the  Methodist  Church  in  Gorham  Village  was  a  beneficiary.] 


COMPETENT  WITNESS.— PEWHOLDER  IN  A  CHURCH.        307 

The  opinion  of  the  court  was  drawn  up  by 

jRice,  J. — The  only  question  presented  for  our  determination  is, 
whether  the  will  of  James  Warren  was  duly  attested  by  three  dis- 
interested and  credible  witnesses. 

It  is  agreed  that  two  of  the  witnesses  to  the  will,  Johnson  and 
Pond,  are  now,  and  were  at  the  time  of  the  witnessing  of  the  will, 
members  of  the  Methodist  Episcopal  Church  and  Society,  wor- 
shipping at  the  Methodist  meeting-house,  in  Gorham  Village,  and 
that  each  owned  one  or  more  pews  in  said  meeting-house,  and 
that  the  other  witness,  Bailey,  owned  a  pew  in  said  meeting-house 
and  attended  the  services  there. 

It  does  not  appear  whether  this  society  was,  or  not,  an  incor- 
porated society. 

By  sec.  2,  c.  92,  stat.  of  1841,  wills  were  required  to  be  attested 
by  "three  credible  witnesses."  By  sec.  1,  c.  74,  stat.  of  1857,  they 
are  required  to  be  attested  by  "three  disinterested  and  credible 
witnesses." 

In  Massachusetts  it  has  been  decided,  that  the  term  "credible 
witness,"  as  used  in  the  statute  of  wills,  means  competent  witness. 
That  is,  a  witness  whom  the  law  will  trust  to  testify  before  a  jury. 
Amory  v.  Fellows,  5  Mass.  219  ;  Ilawes  v.  Humphrey,  9  Pick. 
361 ;  Haven  v.  Hilliard,  23  Pick.  10. 

As  the  law  stood  under  the  statute  of  1841,  persons  deficient 
in  understanding,  and  persons  having  a  direct  pecuniary  interest 
in  the  matter  in  issue,  were  not  deemed  competent  witnesses,  and 
wen'  not  permitted  to  testify  in  courts  of  justice. 

The  will  which  is  now  the  subject  of  controversy  was  executed 
.Ian.  2,  1858,  since  the  It.  S.  of  1857  were  in  operation.  The 
question  of  the  competency  of  the  witnesses  to  the  will  is  to  be 
determined  by  their  condition  at  the  time  the  will  was  executed. 
Patten  v.  Tallman,  27  Maine  17. 

By  sec.  78  of  c.  82,  \l.  S.  1857,  parties  and  others  having  a  di- 
rect pecuniary  interest  in  the  matter  in  issue  are  rendered  compe- 
tent witnesses  in  courts.  But,  by  sec.  80,  of  same  chapter,  this 
provision  ie  restrained,  so  that  it  shall  not  apply  to  the  attestation 
of  the  execution  of  las  I  wills  and  1 1  •,  t  an  lei  1 1 .-,  or  of  any  oilier  in- 
strument which  by  law  is  required  to  be  attested. 

The  law,  therefore,  now  stands,  so  far  as  the  question  of  the 
competency  of  the  witnesses  to  the  will  of  the  testator  is  con- 


308  EXECUTION. 

cerned,  as  it  would  have  stood  bad  the  law  of  1841  been  in  force 
and  required  the  witnesses  to  the  will  to  be  disinterested  and 
credible. 

The  interest  which  will  disqualify  a  person  from  being  a  wit- 
ness must  be  a  present,  certain,  legal,  vested  interest,  and  not  un- 
certain or  contingent.     4  Stark.  Ev.  745. 

The  privilege  of  attending  public  worship  and  the  advantages 
of  education,  although  of  the  highest  importance,  do  not  consti- 
tute such  an  interest  as  will  disqualify  a  witness.  Hawes  v. 
Humphrey,  9  Pick.  350. 

There  is  nothing  in  this  case  to  show  that  the  legal  rights  of  the 
attesting  witnesses,  or  either  of  them,  is  in  the  slightest  degree 
affected  by  these  provisions  in  the  will.  The  fact  that  two  of  the 
attesting  witnesses  were  members  of  the  Methodist  Episcopal 
Church  and  Society,  worshipping  in  the  Methodist  meeting-house, 
in  the  Gorham  Corner  village,  and  that  all  three  of  them  owned 
pews  in  that  house,  does  not,  of  itself,  create  in  them  any  direct, 
certain,  legal,  vested  personal  interest  in  the  legacy  of  the  testator. 
It  does  not  appear  that  there  exists  in  that  society  any  right  to  tax, 
or  in  any  way  to  impose  any  legal  liability  upon  the  witnesses,  or 
that,  by  their  connection  with  the  society,  they  in  any  way  obtain 
any  rights  to  the  property  bequeathed  to  the  society.  Their  con- 
nection with  the  society  may  be,  and,  so  far  as  appears,  is  entirely 
voluntary. 

The  presumption  of  the  law  being  that  all  persons  of  full  age 
are  competent  to  be  witnesses,  the  burden  rests  on  those  alleging 
incompetency  to  show  the  fact.  That  has  not  been  done  in  this 
case. 

The  attesting  witnesses  are,  therefore,  within  the  meaning  of 
the  statute,  "  disinterested  and  credible,"  or  in  other  words  com- 
petent witnesses. 

Decree  of  the  Judge  of  Probate  affirmed. 

[See  also  Marston  v.  Judge,  79  Me.  25,  where  an  inhabitant  of 
a  town,  beneficiary,  was  held  competent.] 


CHAPTER  IV. 
REVOCATION   AND   REPUBLICATION. 

Evert  will  is  ambulatory  during  testator's  life, — that  is,  he  may 
freely  change  or  annul  it  at  any  time.1  Changes  are  effected  by 
codicils,  whose  purpose  is  to  leave  the  old  will  standing  at  least  in 
part,  and  to  add  further,  or  different,  or  inconsistent  provisions, 
or  to  merely  annul  a  portion  of  the  will.2  But  when  the  entire 
will  is  annulled,  it  is  said  to  be  revoked.3  This  revocation  may  be 
effected  in  a  number  of  ways.  The  subject  is  covered  by  statutes, 
which,  in  the  several  jurisdictions,  vary  a  good  deal  from  one  an- 
other both  in  the  terms  in  which  they  are  expressed  and  in  the 
particular  provisions  for  revocation  which  they  enumerate.  In 
each  case  the  local  statute  must  be  consulted.  The  following 
statement  sets  forth  the  leading  ways  in  which  a  will  may  be  re- 
voked in  some  or  all  of  our  States. 

1.  Revocation  by  a  subsequent  duly  executed  will.4  Here 
there  are  two  classes  of  cases :  first,  where  the  later  will  expressly 
revokes  the  earlier,  and  second,  where  its  provisions  are  in  fact 
such  as  to  completely  supersede  those  of  the  earlier.5  If  the  later 
will  does  not  in  terms  revoke  the  earlier,  and  the  earlier  contains 
provisions  not  inconsistent  with  the  later,  and  not  duplicated  by 

!  In  order  to  revoke  :i  will,  testator  must  be  of  sound  mind.  Scruhy  v.  Ford- 
ham,  1  Add.  74;  and  not  subject  to  undue  influence,  Rich  v.  (Jilkey,  7:5  Me. 
595.  Undue  influence,  to  nullify  revocation,  must  exist  at  the  very  time  of  the 
act  of  revocation.      Reichenbacb  v.  Ruddach  (IYnn.),  IS  All.  Rep.  482. 

"  Sykes  v.  Bykes,  I,.  R.  i  Eq.  200  ;  Wetmore  v.  Parker,  52  1ST.  V.  460. 

■  Sometimes  a  codicil  is  so  inseparably  connected  with  the  will  that  a  revoca- 
tion of  the  will  necessarily  revokes  the  codicil  too.  Coppin  v.  Dillon.  -1  Bagg. 
- i * 5 1  (869).      Bui  tin's  result  does  not  follow  if  the  codicil  is  of  such  :i  character 

as  to  be  enforceable  alone.   Tagarl  v.  Eooper,  l  Curt.  289  (294);  Gardiner  v. 
Conrthope,  12  P.  D.  it. 

4  A  written  will  cannot  be  revoked  by  a  nuncupative  will.  McCunev.  House, 
8  Ohio  I  11. 

Re  Fisher,  4  Wis.  254. 

(1109) 


310  EEVOCATION   AND   REPUBLICATION. 

it,  then  the  later  will  is  really  a  codicil  to  the  earlier,  and  the  two 
taken  together  constitute  testator's  last  will.1 

2.  Revocation  by  some  other  instrument  in  writing  executed 
in  the  manner  prescribed  for  the  execution  of  wills.  This  only 
differs  from  the  preceding  case  in  that  here  the  instrument  is  de- 
voted exclusively  to  the  declaration  revoking  the  will,2  and  results 
in  revoking  the  will  in  whole  or  in  part  according  to  its  terms. 

REVOCATION  BY  WRITING.— ESSENTIALS. 
Nelson  vs.  The  Public  Administrator. 

Surrogate's  Court,  New  York  County,  New  York,  1852. 

(2  Bradf.  210.) 

Bradford,  S. —  Letters  of  administration  were  issued  on  the 
estate  of  deceased  to  the  Public  Administrator.  Subsequently, 
four  unattested  wills,  three  others  apparently  duly  executed,  and 
several  papers  of  revocation,  were  discovered.  The  latest  of  the 
executed  wills  is  dated  February  3,  1840,  and  that  is  the  instru- 
ment now  offered  for  proof.  Its  execution  is  formally  proved  by 
the  depositions  of  the  subscribing  witnesses ;  but  it  is  urged  that 
it  has  been  revoked.  Three  of  the  alleged  revocations  are  wills 
signed  but  not  attested,  and  three  are  mere  declarations  of  revo- 
cation, subscribed  by  the  testator,  but  without  the  names  of  sub- 
scribing witnesses.  They  run  in  this  way,  "  I,  James  Matheson, 
etc.,  do  hereby  abrogate  and  revoke  all  testaments,  wills,  or  codi- 
cils I  have,  or  might  heretofore  have  made,"  etc.  "  I,  James 
Matheson,  who  have  made  and  wrote  and  signed  the  within,  my 
last  will  and  testament,  do  hereby  rescind  and  revoke  this  my 
last  will  and  testament,  and  all  or  any  other  wills  and  testaments 
or  codicils  of  wills,  formerly  or  heretofore  made  by  me,"  etc. 
"  I  hereby  rescind  and  revoke  these  my  last  wills  and  testaments, 
or  any  other  wills  and  testaments  or  codicils  of  wills  formerly  or 
heretofore  made  by  me."  The  first  of  these  was  on  a  separate 
sheet  of  paper,  the  second  on  what  appears  to  have  been  a  wrap- 


1  Doe  dem.  Strickland  v.  Strickland,  8  C.  B.  724  (745).  Two  inconsistent 
wills  of  the  same  date  are  void  for  uncertainty  so  far  as  inconsistent,  in  absence 
of  further  light  as  to  order  of  execution.  Phillips  v.  Anglesey,  7  Bro.  H.  L. 
Rep.  (Bro.  P.C.)443. 

5  2  N.  Y.  R.  S.  64,  sec.  42. 


REVOCATION   BY   WRITING. — ESSENTIALS.  311 

per,  and  the  third  on  the  back  of  a  will  executed  in  1839.  They 
are  all  posterior  in  date  to  the  will  propounded  for  proof.  They 
express,  as  strongly  as  anything  can,  a  determination  to  rescind 
every  instrument  of  a  testamentary  character  ever  executed  by 
the  testator;  and  they  express  this  repeatedly,  showing  a  con- 
tinued and  earnest  intention  to  revoke.  They  show  that  the  tes- 
tator supposed  the  mere  writing  and  subscribing  them  was  suffi- 
cient to  constitute  a  present  operative  act  of  revocation,  and  that 
his  will  executed  in  1840,  was  not  conformable  to  his  subsequent 
wishes.  But  notwithstanding  this  mistaken  supposition,  and  this 
undeniable  evidence  of  an  intention  to  revoke  all  wills,  the  law 
must  govern,  though  the  rules  adopted  for  wise  and  salutary  pur- 
poses may  seem  hard  in  this  particular  case.  The  statute  is  just 
as  rigid  on  the  subject  of  written  revocations  as  in  regard  to  the 
execution  of  wills.  A  revocation  in  writing,  to  be  valid,  must  be 
"executed  with  the  same  formalities  with  which  the  will  itself 
was  required  by  law  to  be  executed."  The  testator  might  have 
revoked  by  burning,  tearing,  cancelling,  obliterating,  or  destroy- 
ing; but  he  selected  the  mode  of  revocation  by  writing,  and  has 
failed  in  accomplishing  his  object  from  want  of  the  necessary 
formalities.  "What  would  be  the  effect  of  a  written  declaration 
of  revocation  upon  an  executed  will — whether  it  could  be  re- 
garded as  a  present  attempt  at  cancellation — it  is  not  necessary  to 
consider;  for  the  will  upon  which  one  of  these  revocations  was 
written  is  anterior  in  date  to  the  one  propounded.  I  see  no  room, 
therefore,  for  any  argument  on  the  subject:  the  terms  of  the 
statute  are  clear  and  unequivocal ;  the  testator  has  adopted  a  man- 
ner of  revocation  in  which  be  has  failed  to  comply  with  the  law, 
and  these  informal  acts  have  no  legal  validity.  The  will  must, 
therefore,  be  decreed  to  have  been  duly  proved. 

3.    Revocation  by  marriage  of  testatrix.1 

1  2  Blackst  Comm.  499.  Ellia  v.  Darden,  86  Ga.  868.  In  sonic  States  the 
will  of  ii  man  is  al>o  revoked  by  his  subsequent  marriage.  III.  R.  S  eh.  89, 
•  10;  Va.  Code,  §  2517.     Ami  in  others,  marriage  does  not  revoke  the  previous 

will  of  either  a  man  or  a  woman.     Ohio  R.  S.,  g  'tU'tH. 


312  REVOCATION    AND   REPUBLICATION. 

REVOCATION  BY  MARRIAGE. 
Stewart  v.  Powell. 

Kentucky  Coubt  of  Appeals,  1890. 

(14  S.  W.  Rep.  496.) 
Appeal. 

Pryor,  J. — James  Stull,  of  Webster  County,  married  a  Mrs. 
Burkley,  and  prior  to  the  marriage  entered  into  a  contract  fixing 
the  right  of  property  by  reason  of  the  marital  relation.  He  gave 
to  her  a  tract  of  land  and  some  personal  property  during  life,  and 
at  her  death  he  directed  by  a  will  written  at  the  same  time,  that 
the  property  should  pass  to  one  of  his  daughters,  Mrs.  Stewart, 
theii  Lily  Stull.  The  marriage  was  consummated  some  four  or 
five  months  after  the  contract  had  been  entered  into,  but  after- 
wards annulled  by  the  decree  of  the  chancellor,  in  which  a  divorce 
was  granted.  In  the  execution  of  the  will,  or  as  a  part  of  its 
contents,  he  "  wished  the  contract  carried  out  and  observed,"  but 
that  contract  by  a  court  of  competent  jurisdiction  has  been  can- 
celed, and  the  parties  left  as  if  the  marriage  relation  had  never 
existed.  The  will  was  offered  for  probate,  and  rejected  in  the 
circuit  court,  on  the  ground  that  the  marriage  revoked  it.  The 
statute  provides :  "  Every  will  made  by  a  man  or  woman  shall  be 
revoked  by  his  or  her  marriage,  except  a  will  made  in  exercise  of 
a  power  of  appointment  when  the  estate  thereby  appointed  would 
not,  in  default  of  such  appointment,  pass  to  his  or  her  heir,  per- 
sonal representative,  or  next  of  kin."  In  this  case,  the  will  and 
the  antenuptial  contract  were  both  executed  long  before  the 
parties  became  man  and  wife,  nor  did  the  will  in  any  manner 
affect  the  lights  of  Mrs.  Burkley  under  the  antenuptial  agree- 
ment, and  the  case  stands  as  if  the  will  had  been  executed  prior 
to  the  marriage,  and  in  the  absence  of  any  contract  whatever. 

The  case  of  Stewart  v.  Mulholland,  reported  in  88  Ky.  38",  10 
S.  W.  Rep.  125,  was  the  will  of  a  woman  made  at  the  time  of 
the  marriage  under  an  agreement  with  her  husband  that  it  should 
be  made ;  and  while  the  antenuptial  contract,  the  will,  and  the 
marriage  were  all  executed  on  different  days,  they  were  so  near 
each  other,  and  each  directly  relating  to  the  same  matter,  that  this 
court  held  them  to  be  simultaneous  transactions.  It  was  the 
wife's  estate  disposed  of  by  the  consent  of  her  husband,  and  in 


REVOCATION   BY   MARRIAGE.  313 

the  execution  of  a  power  conferred  on  her  by  that  agreement ; 
in  fact  the  property  should  be  regarded  as  her  separate  estate 
under  such  circumstances.  This  court  referred  to  Osgood  v.  Bliss, 
141  Mass.  474,  6  N.  E.  Eep.  527,  and  to  Will  of  Ward,  70  Wis. 
251,  35  X.  W.  Rep.  731,  under  statutes  similar  to  the  statute  of 
this  State,  where  the  will  of  the  married  woman  was  sustained. 
We  find  no  ruling  to  the  contrary.  The  wife,  when  laboring 
under  the  disability  of  coverture,  has  no  power  to  make  a  will, 
while  the  husband  may  at  all  times,  if  competent  to  do  so,  dispose 
of  his  property  by  will,  subject  to  the  right  of  his  wife  to  such 
part  of  his  estate  as  the  law  gives  her  at  his  death  ;  but,  as  to  the 
wife,  she  is  powerless,  unless  in  the  exercise  of  some  power  con- 
ferred on  her,  or  in  the  disposition  of  her  separate  estate,  which, 
although  general  estate  before  the  marriage,  may  become  separate 
estate  by  reason  of  an  antenuptial  contract  giving  to  the  wife  the 
power  to  dispose  of  it  as  if  she  was  &  feme  sole.  In  Stewart  v. 
Mulholland  the  court  was  discussing  the  powers  of  a  married 
woman  to  make  a  will,  and  did  not  adjudge  in  that  case  that  the 
will  was  executed  before  the  marriage,  but,  in  effect,  held  that  it 
was  simultaneous  with  the  marriage,  and  made  in  pursuance  of 
the  contract  made  by  the  husband  and  wife,  by  which  the  power 
to  devise  was  given.  The  language,  in  the  opinion  of  Stewart  v. 
Mulholland,  to  the  effect,  "  the  marital  right  having  been  settled 
by  their  agreement,  and  no  one  else  being  directly  or  indirectly 
interested  but  the  husband,  why  should  it  be  revoked?"  was 
applied  to  the  case  then  before  us,  where  the  feme  was  empowered 
to  make  a  will  that,  by  the  contract,  conferred  on  her  the  power 
to  dispose  of  it  as  her  separate  property.  In  our  opinion,  the 
marriage  in  this  case  revoked  the  will  ;  and  the  judgment  reject- 
ing the  paper  as  the  last  will  of  James  Stall  is  arKrmed. 

REVOCATION    BY  MARRIAGE.— STATUTORY   RIGHTS    OF  MAR- 
RIED WOMEN. 

George  A.  Emery,  Appellant. 

Maine  Si  tkimi,  Judicial  Coukt,  1889. 
(81  Maine  275.) 
Facts  aqbeed. 

Will  of   Mrs.  Esther  Hunt. 

Walton,  .1.    Tlic  ijuestion  la  whether  the  common-law  rule, 


314  REVOCATION   AND   REPUBLICATION. 

that  the  will  of  a  feme  sole  is  revoked  by  her  marriage,  is  now  in 
force  in  this  State.     We  think  it  is  not.     The  rule  was  an  out- 
growth of  the  doctrine  that  the  marriage  of  a  feme  sole  destroyed 
her  testamentary  capacity.     After  her  marriage  she  could  neither 
make  nor  revoke  a  will.     A  will  already  made,  if  allowed  to 
remain  valid,  would  make  a  permanent  disposition  of  her  prop- 
ertv.     This  would  be  contrary  to  the  very  essence  and  nature  of  a 
will.    It  would  cease  to  be  ambulatory.    It  was  therefore  resolved 
that  the  marriage  of  a  feme  sole  should,  by  operation  of  law, 
revoke  all  existing  testamentary  dispositions   of   her   property. 
But,  in  this  State,  the  marriage  of  a  feme  sole  does  not  now  de- 
stroy her  testamentary  capacity.     In  this  particular  the  common 
lawis  not  now  in  force.    It  has  been  abrogated  by  the  legislature. 
A  married  woman  can  now  make,  or  alter,  or  revoke  a  will,  as 
fully  and  as  freely  as  if  she  were  not  married.    Why,  then,  should 
her  marriage  revoke  a  pre-existing  will?    We  think  it  should  not. 
Cessante  ratione  legis,  cessat  ipsa  lex.     Reason    is   the   soul   of 
the  law,  and  when  the  reason  of  any  particular  law  ceases,  so  does 
the  law  itself.     In  England  it  is  now  enacted  that  the  marriage 
of  either  a  man  or  a  woman  shall  revoke  a  pre-existing  will,  unless 
it  is  executed  under  a  power  of  appointment.     In  New  York 
they  have  a  statute  which  declares  in  express  terms  that  the  mar- 
riage of  a  woman  shall  revoke  a  pre-existing  will.     In  Massachu- 
setts they  have  a  statute  which,  as  construed  by  the  court,  has  the 
same  effect.    Similar  statutes  exist  in  several  other  States.    Where 
such  statutes  exist,  the  question  we  are  now  considering  cannot 
arise.     In   other  States,  where  the  testamentary  laws   and   the 
rights  and  powers  of  married  women  are  similar  to  those  now 
existing  in  this  State,  it  has  been  held  that  the  marriage  of  a 
feme  sole  will  not  revoke  a  pre-existing  will.    It  is  said  in  a  New 
Hampshire  case  that  when  the  incapacity  of  a  married  woman  to 
make  a  will  is  removed,  no  reason  remains  why  her  will,  made 
before   her   marriage,   should    be   thereby    revoked.      Morey   v. 
Sohier,  63  K  H.  507  (2  K  E.  Eep.  274).     And  see  Fellows 
v.  Allen,  60  N.  H.  439;   Webb  v.   Jones,  36  N.  J.  Eq.   163. 
Ward's  Estate  (Wis.),  35  N.  W.  R.  731.     Carey's  Estate,  49  Yt. 
236.     Our  statutes  recognize  the  fact  that  a  will  may  be  revoked 
by  operation  of  law  from  a  change  in  the  condition  or  circum- 
stances of  the  maker  (R.  S.,  c.  74,  sec.  3),  but  they  are  silent  as 


REVOCATION   BY   MARRIAGE.  315 

to  what  the  changes  or  circumstances  are,  which  shall  have  that 
effect.  If  the  marriage  of  &feme  sole  now,  as  formerly,  destroyed 
her  testamentary  capacity,  the  change  in  her  condition  and  cir- 
cumstances would  now,  as  then,  also  destroy  the  validity  of  an 
existing  will.  But  such  is  not  now  the  effect  of  a  marriage.  In 
this  State,  a  feme  covert  can  make  or  revoke  a  will  as  freely  as  a 
feme  sole;  and  the  reason  no  longer  exists  for  holding  that  the 
will  of  a  feme  sole  will  be  revoked  by  her  marriage.  It  will  not 
be.  The  decree  of  the  probate  court  holding  the  contrary  was 
erroneous,  and  must  be  reversed. 

Decree  reversed. 

[Also  Re  Tuller,  79  111.  99 ;  Webb  v.  Jones,  36  K  J.  Eq.  163 
(165);  Fellows  v.  Allen,  60  N.  H.  439  (441);  Noyes  v.  South- 
worth,  5.">  Mich.  173;  Morton  v.  Onion,  45  Vt.  145;  Carey's 
Estate,  49  Vt.  236  (250);  Miller  v.  Phillips,  9  R.  I.  141. 

Compare  the  case  above  given  with  the  following  case.] 


REVOCATION    BY  MARRIAGE.— STATUTORY   RIGHTS    OF   MAR 

RIED   WOMEN. 

Brown  et  al.  v.  Clark  et  al. 

New  York  Court  of  Appeals,  1879. 
(77  N.  Y.  309.) 

Application  for  probate.  The  surrogate  of  Monroe  County  de- 
nied the  application.  On  appeal  his  decree  was  reversed  by  the 
General  Term,  and  this  appeal  was  then  taken. 

.Mary  J.  Clark,  th  ■  testatrix,  executed  her  will  August  25, 
1873.  She  afterwards  married,  and  on  October  1,  1877,  she  died. 
Several  questions  were  raised  on  the  appeal. 

Andrews,  J.     (Attn-  finding  that  the  will  was  duly  executed.) 

We  concur  in  the  conclusion  reached  by  the  surrogate  thai  the 
will  was  revoked  by  the  subsequenl  marriage  of  the  testatrix.  It 
w;i,  the  ride  of  the  common  law  that  the  marriage  of  a  woman 
operated  a  an  absolute  revocation  of  her  prior  will.  (Force  and 
Benibli tig's  Case.  I  C<>.  61.)  Hie  reason  of  the  rule  is  stated  by 
Lord  Chancellor  Thurlow  in  Hodsden  v.  Lloyd  (2  Bro.  Oh.  534). 
Eesays:  "It  is  contrary  to  the  nature  of  the  instrument,  which 
must  be  ambulatory  during  the  life  of  the  testatrix;  and  as  by 


316  •  REVOCATION   AND   REPUBLICATION. 

the  marriage  she  disables  herself  from  making  any  other  will,  this 
instrument  ceases  to  be  of  that  sort,  and  must  be  void."     The  rule 
that  the  marriage  of  a  feme  sole  revoked  her  will  was  made  a 
part  of  the  statute  law  of  this  State  by  the  Revised  Statutes.     (2 
R.  S.  64,  sec.  44.)     The  language  of  the  statute,  that  the  will  of 
an  unmarried  woman  shall  be  deemed  revoked  by  her  subsequent 
marriage,  is  the  declaration  of  an  absolute  rule.     The  statute  does 
not  make  the  marriage  a  presumptive  revocation  which  may  be 
rebutted  by  proof  of  a  contrary  intention,  but  makes  it  operate 
eo  instanti  as  a  revocation.     (4  Kent,  528.)     It  is  claimed  by  the 
contestants  that  the  testamentary  capacity  conferred  upon  married 
women  by  the  recent  statutes  in  this  State  takes  away  the  reason 
of  the  rule  of  the  common  law,  and  that  upon  the  maxim  ces- 
sante  ratione  legis,  cessat  lex  ipse,  the  rule  should  be  deemed  to 
be  abrogated.     Upon  the  same  ground  it  might  have  been  urged  at 
common  law  that  the  marriage  of  a  feme  sole  should  only  be 
deemed  a  revocation  or  suspension  of  her  prior  will  during  the 
marriage,  and  that  when  the  woman's  testamentary  capacity  was 
restored  by  the  death  of  her  husband,  leaving  her  surviving,  the 
will  should  be  revived ;  but  the  contrary  was  well  settled.   (Force 
and  Hembling's  Case ;  1  Jarman,  106 ;  4  Kent,  598.)     But  the 
courts  cannot  dispense  with  a  statutory  rule  because  it  may  appear 
that  the  policy  upon  which  it  was  established  has  ceased.     The 
married  women  acts  confer  testamentary  capacity  upon  married 
women,  but  they  do  not  undertake  to  interfere  with  or  abrogate 
the  statute  prescribing  the  effect  of  marriage  as  a  revocation.     It 
was  quite  consistent  that  the  legislature  should  have  intended  to 
leave  the  statute  of  1830  in  force  although  the  new  statutes  took 
away  the  reason  upon  which  it  was  based.     The  legislature  may 
have  deemed  it  proper  to  continue  it  for  the  reason  that  the  new 
relation  created  by  the   marriage  would  be  likely  to  induce  a 
change  of  testamentary  intention,  and  that  a  disposition  by  a  mar- 
ried woman  of  her  property  by  will  should  depend  upon  a  new 
testamentary  act  after  the  marriage. 

[The  judge  here  considers  the  effect  of  a  codicil  executed  by 
testatrix  after  her  marriage,  and  finds  that  it  was  effectual  to  re- 
publish the  will,  and  that  there  was  no  proof  of  undue  influence.] 

All  concur. 

Order  affirmed. 


REVOCATION   BY   MARRIAGE   OF   A   WIDOW.  317 

[To  the  same  effect,  Swan  v.  Hammond,  138  Mass.  45  ;  Nutt  v. 
Norton,  142  Mass.  242. 

Compare  the  preceding  case  given  above.] 

REVOCATION   BY   MARRIAGE   OP   A   WIDOW. 
matter  of  Kaufman. 

New  York  Court  op  Appeals,  1892. 
(131  N.  Y.  620.) 

Appeal  to  the  Court  of  Appeals. 

Gray,  J. — This  will  was  made  by  the  deceased  while  she  was 
the  widow  of  one  Dillon.  She  subsequently  intermarried  with 
Kaufman  and  died,  leaving  him  surviving.  The  executor  ap- 
pointed in  this  will  offered  the  instrument  for  probate:  but  was 
opposed  in  his  proceedings  by  Kaufman,  who  claimed  that  the  will 
had  been  revoked  by  testatrix's  marriage  with  him,  and  who  has 
been  sustained  in  that  claim  by  the  surrogate  and  the  General  Term. 
In  their  decisions  those  courts  were  clearly  right,  and  we  should 
Bay  nothing  here,  in  disposing  of  this  appeal,  were  it  not  for  the 
statement  that  there  is  no  authoritative  decision  by  this  court  upon 
the  particular  question.  We  should  suppose  that  the  case  of 
Brown  v.  Clark,  77  N.  Y.  369,  was  a  sufficient  authority  in  point; 
although  the  testatrix  in  that  case  was  a  woman  who  had  never 
been  married  at  all.  For  any  discussion  as  to  the  operation  of  the 
acts  passed  by  the  legislature  of  this  State  in  relation  to  married 
women  and  their  effect  in  conferring  upon  them  testamentary 
capacity,  reference  may  be  had  to  that  case. 

The  appellant  attempts  an  argument  upon  the  meaning  to  be 
given  to  the  words  "  unmarried  women  "  in  the  statute,  and  seeks 
to  give  substance  to  it  by  reference  to  some  cases  arising  upon  the 
construction  of  wills  and  where  the  discussion  bore  upon  the  pre- 
BUmed  intention  of  the  testator  in  his  gifts  or  limitations  of  prop- 
erty.    Bul  such  cases  can  have  no  influence  upon  the  question  o\ 

what    i-   accomplished    by  the    Revised    Statutes    in  the    provision 

that  "a  will  executed  by  an  unmarried  woman  shall  be  deemed 
revoked  by  her  subsequent  marriage."     Pt.  2,  chap.  6,  tit.  1.  art. ."». 
It  was  a  recognition  of  the  common-law  rule  which,  in  the  opera- 
tion of  flu-  statute  upon  the  civil   status  of  tic  married  woman,  is 

unaffected  by  the  enlargement  of  her  legal  capacities.     At  com. 


318  REVOCATION   AND   REPUBLICATION. 

mon  law  the  feme  sole,  in  marrying,  merged  her  legal  identity 
in  that  of  her  husband.     In  the  unity  of  person,  caused  by  the 
marriage  relation,  the  wife  lost  the  control  of  her  property,  and 
hence  of  her  will.     Under  our  statutes  that  identity  of  person  is 
only  affected,  and  separate  legal  capacity  is  only  conferred  upon 
the  wife  to  the  precise  extent  mentioned  in  the  enabling  acts. 
As  we  have  repeatedly  held,  the  common  law  has  been  no  further 
abrogated  than  is  read  in  the  statute.     Nothing  has  been  enacted 
which  alters  the  provision  that  her  will  is  revoked  by  a  subsequent 
marriage.     There  is  sufficient  reason  for  the  continuance  of  the 
rule  in  the  changed  relations  of  the  woman.     Her  new  status  as 
wife  induces  the  presumption   of  a  new  testamentary  intention, 
and^ demands  a  new  testamentary  act.     The  unmarried  woman 
referred  to  by  the  statute  must  be  defined  according  to  that  rule 
of  statutory  construction  which  requires  that  the  words  used  in 
legal  enactments  shall  be  understood  and  taken  in  their  ordinary 
and  familiar  significance.     So  read,  the  unmarried  woman  of  the 
statute  is  the  woman  who  is  not  in  a  state  of  marriage.     That  the 
legislature  could  have  had  any  other  idea  is  both  inconceivable 
and  unreasonable. 

The  judgment  below  should  be  affirmed,  with  costs  to  the  re- 
spondent as  against  the  appellant. 

All  concur. 

[To  the  same  effect,  Blodgett  v.  Moore,  141  Mass.  75 ;  Nutt  v. 
Norton,  142  Mass.  242.] 

4.  Revocation  by  testator's  subsequent  marriage  and  birth  of 
issue.1  Both  conditions  must  occur  to  effect  revocation;  but  if 
testator  make  provision  in  the  will  for  future  children,  then  his 
marriage  and  their  birth  will  not  effect  revocation.2  And  so,  also, 
if  the  will  does  not  dispose  of  all  his  property.3 

«  2  Blackst.  Coram.  376  ;  Christopher  v.  Christopher,  4  Burr.  2182  note ; 
Wellington  v.  Wellington,  Id.,  at  p.  2171  ;  Marston  v.  Fox,  8  Ad.  &  El.  14; 
Gay  v.  Gay,  84  Ala.  38. 

2  Kenebel  v.  Scrafton,  2  East  530.  (For  a  history  of  this  class  of  cases  see 
Chancellor  Kent's  opinion  in  Brush  v.  Wilkins,  4  Johns.  Ch.  510.)  In  wills  of 
real  property  it  was  held  that  the  law  worked  the  revocation  in  this  case,  and 
so  no  evidence  of  testator's  intent  was  admissible.  Marston  v.  Fox,  8  Ad.  & 
El.  14.     But  as  to  personalty,  see  Fox  v.  Marston,  1  Curt.  494. 

3  Kenebel  v.  Scrafton,  2  East  530,  2  N.  Y.  R.  S.  64,  §43. 


PARTIAL  REVOCATION. — POSTHUMOUS   CHILD.  319 

5.  Revocation  by  subsequent  birth  of  child  unmentioned  and 
unprovided  for.1  In  some  States,  the  birth  of  a  child  after  the 
execution  of  the  will,  who  is  neither  provided  for  nor  mentioned, 
results  in  a  partial  revocation  of  the  will  so  far  as  to  give  him  the 
share  he  would  have  taken  had  the  testator  died  intestate.3  In 
others  the  same  event  results,  under  some  circumstances,  in  the 
revocation  of  the  entire  will.8  And  sometimes  similar  provision 
is  made  for  cases  where  testator  neglects  to  provide  for  children 
even  though  they  are  living  at  the  date  of  the  will.4 

PARTIAL  REVOCATION.— POSTHUMOUS   CHILD. 

John   A.  Waterman,   Judge   of  Probate,  vs.  James  J. 

Hawkins  et  als. 

Maine  Supreme  Judicial  Court,  1873. 

(63  Maine  156.) 

Barrows,  J. — One  McGlinchy  died  February  2,  1869,  leaving 
a  widow  and  father  to  whom  he  gave  property  in  his  will.  Two 
months  after  his  death  a  posthumous  child,  for  whose  benefit  this 
suit  on  his  executor's  bond  is  brought,  was  born. 

The  testator  devised  and  bequeathed  to  his  wife,  during  her 
life  and  widowhood,  his  house  and  land  with  the  furniture  and 
other  personal  property  on  the  premises — to  become  the  pr6perty 
of  his  heirs  upon  her  death  or  marriage.  To  his  father  he  gave 
all  his  other  property,  wherever  found  or  situate,  specifying  all 
the  property  in  and  about  his  store,  and  all  his  horses,  wagons, 
and  teams. 

The  widow  seasonably  waived  the  provision  made  in  the  will 
for  her,  preferring  to  take  her  dower  and  allowance. 

On  the  first  Tuesday  of  May.  IS71,  the  executor  settled  his 
first  account, showing  a  balance  remaining  in  his  hands  not  acces- 
sary for  the   payment  of  debts  or  expenses  of  administration,  of 

1  Subsequent  adoption  of  a  child  does  not  satisfy  this  provision.  Davie  v. 
Fogle  (In. i...  28  .V  E.  860. 

2  \  V  R.S  85,  sec.  49,  as  amended  L.  L869,  c.  23;  Mclntirev.  Mclntire, 
64  N.  II    609. 

For  Id  tance,  Ohio  R.  S.  §5959;  Ah  v.   Ash,  9  Ohio  St.  888;  Evans  v. 
Anderson,  r>  Ohio  St.  824    See  Rhodes  v.  Weldy,  16  Ohio  St.  284  ;  [nd.  K. 
M   •  re'  ed  >,  §2560;  Bowers  v.  Bowers,  58  End.  480. 
1  Mass.  Pub.  st.  750,  sect.  81. 


320  REVOCATION   AND   REPUBLICATION. 

$557.39.  Upon  the  first  Tuesday  of  June  following,  the  judge 
of  probate  under  R.  S.,  c.  74,  sec.  8,  decreed  to  the  posthumous 
child,  as  not  being  provided  for  in  the  will,  the  sum  of  $371.50, 
being  two-thirds  of  the  balance  aforesaid,  to  be  taken  from  said 
residuum,  which  would  otherwise  have  been  the  share  of  the  tes- 
tator's father,  the  residuary  legatee.  The  decree  was  in  precise 
conformity  with  the  statute  provision ;  for  as  the  widow  waived 
the  provision  made  for  her  in  the  will,  none  of  the  property, 
whether  specifically  bequeathed  or  not,  could  pass  by  the  will  to 
the  prejudice  of  the  claim  of  the  posthumous  child  for  her  share; 
and  under  these  circumstances  that  share  must,  of  necessity,  all 
come  from  that  of  the  residuary  legatee.  The  decree  was  not 
appealed  from.  But  upon  demand  made  upon  the  executor  in 
behalf  of  the  child,  he  declined  to  pay  over  according  to  the  de- 
cree, having  allowed  the  property  to  go  into  the  hands  of  the  lega- 
tee before  the  birth  of  the  child.  The  presiding  judge,  to  whom 
the  case  was  submitted,  ordered  judgment  for  the  penalty  of  the 
bond,  and  execution  to  issue  for  $371.50  and  interest  from  the 
date  of  the  demand  and  legal  costs. 
The  defendants  except,  claiming: 

I.  That  the  probate  judge  had  no  jurisdiction  to  make  the  de- 
cree, because  (they  say)  the  child  was  provided  for  in  the  will, 
in  the  clause  which  gives  the  reversion  of  the  property  devised 
to  the  wife,  to  the  heirs  of  the  testator  upon  her  death  or  mar- 
riage ;  and, 

II.  That,  however  this  may  be,  the  child's  remedy  is  against 
the  legatee,  who  has  got  the  property,  and  not  against  the  execu- 
tor and  his  sureties.  We  are  clear  that  neither  point  is  well 
taken. 

A  child  of  a  testator,  born  after  his  death,  cannot,  in  any  proper 
sense  of  the  term,  be  deemed  "  provided  for  in  his  will "  by  a  gen- 
eral devise  of  a  reversion  to  the  heirs  of  the  testator. 

There  is  nothing  in  such  a  provision  to  suggest  that  the  child 
was  thought  of  by  the  testator.  The  form  of  expression  would 
indicate  the  contrary.  To  relieve  the  judge  of  probate  from  the 
duty  imposed  in  R.  S.,  c.  74,  sec.  8,  there  must  be  provision  made 
specifically  for  the  unborn  child.  He  cannot  be  disinherited  like 
a  child,  or  the  issue  of  a  deceased  child,  when  it  appears  that  the 
omission  to  refer  to  him  was  intentional.    Unless  he  is  "  provided 


LAPSE   OF  TIME.  321 

for,"  the  conclusive  presumption  is  that  he  was  not  expected,  and 
the  law  declares  that  he  shall  take  the  same  share  of  his  father's 
estate  as  if  the  father  had  died  intestate.  A  general  devise  of  a 
reversion  to  the  heirs  of  the  testator  constitutes  no  such  provi- 
sion. It  would  rarely  be  available  for  the  support  of  the  child 
when  support  is  most  needed  ;  and  while  the  insufficiency  of  the 
provision  in  the  will  might  not  entitle  the  posthumous  child  to 
claim  a  distributive  share,  in  order  to  bar  him,  it  must  definitely 
appear  that  some  provision  relating  expressly  to  him  was  made. 
Nor  can  the  executor  relieve  himself,  or  his  sureties,  by  showing 
that  he  incautiously  allowed  the  property  to  fall  into  the  hands 
of  the  legatee.  He  is  responsible  first  and  always  for  the  proper 
appropriation  of  the  estate  to  the  discharge  of  all  legal  claims 
upon  it. 

When  he  settles  his  account,  showing  a  balance  to  be  legally 
disposed  of  according  to  the  order  of  the  judge,  it  is  no  sufficient 
excuse  for  the  non-fulfilment  of  the  decree  that  he  had  misappre- 
hended his  duty  in  the  premises,  and  had  allowed  the  property  to 
go  where  it  did  not  belong.  Even  though  it  may  have  gone 
wrong  with  the  consent  of  the  judge  of  probate,  founded  on  er- 
roneous information  as  to  existing  facts,  it  will  not  relieve  the 
accountant  and  his  sureties  who  are  responsible  throughout  for 
the  correctness  of  his  doings.  Williams,  J.  v.  Cushing,  Ex.,  34 
Maine  370. 

Exceptions  overruled. 

6.  Revocation  by  change  of  testator's  circumstances.  This  is 
not  properly  a  separate  division  of  the  subject,  for  it  covers  by  a 
general  term  only  particular  changes  of  circumstances  already 
mentioned.  It  is  named  here  because  attempts  have  been  made 
to  give  it  a  wider  scope. 

LAPSE  OF   TIME.— CHANGE  OF   TESTATOR'S   CIRCUMSTANCES. 

Samuel  Warner  and  wife  VS.  Kraaiim*  I>.  IScacli. 

|£asba<  in  SBi  i-  Supreme  Judicial  Court,  1855. 
(4  (J ray,  163.) 

Sl,,ni\  ('.  J. — This   is   an  appeal    by  an   heir-at-law,  again.-t    the 

probate  of  the  will  of  Claris  Cooley.     The  ground  is,  thai  the  will 
was  revoked  by  lapseof  time  ami  change  of  circumstances.  These 
21 


322  E  EVOCATION   AND   EEPUBLICATION. 

circumstances  are  very  peculiar  in  point  of  fact,  and  can  hardlj 
be  expected  to  occur  again. 

The  testator  made  his  will,  in  due  form  and  duly  executed  in 
May,  1811,  and  died  in  1854.  It  is  not  now  contended  that  he 
was  not  of  sound  mind  when  the  will  was  executed,  though  it 
was  intimated  in  the  reasons  of  appeal ;  but  it  is  found  by  the 
case  that  he  soon  after  became  insane,  and  so  continued  to  the 
time  of  Ins  death.  When  the  will  was  made  he  had  four  daugh- 
ters and  two  sons,  and  a  third  son  was  soon  after  born.  Provision 
was  made  in  the  will  for  the  child  thus  expected,  in  the  respective 
contingencies  of  being  a  son  or  a  daughter.  By  the  will,  after 
making  provision  for  his  wife,  and  for  a  legacy  of  four  hundred 
and  fifty  dollars  to  each  of  his  daughters,  he  gave  all  the  residue 
of  his  estate,  real  and  personal,  to  his  sons.  The  wife  died  in  the 
lifetime  of  the  testator,  also  one  of  the  daughters,  leaving  chil- 
dren still  surviving.  These  were  all  the  changes  which  took  place 
in  the  testator's  family.  The  real  estate  on  which  the  will  may 
operate  remains  the  same ;  but  has  risen  in  value,  by  the  general 
advance  in  the  money  price  of  estate,  to  about  twenty  thousand 
dollars,  being  about  four  times  its  value  when  the  will  was  made. 
It  is  remarkable  that  no  greater  changes  occurred  in  such  a  family 
during  so  long  a  course  of  years. 

Our  statute  of  wills,  in  providing  that  wills  shall  not  be  revoked 
unless  by  cancelling,  or  by  another  will,  etc.,  excepts  revocation 
implied  by  law,  from  subsequent  changes  in  the  condition  and 
circumstances  of  the  testator.  Rev.  Sts.,  c.  62,  sec.  9.  What 
those  changes  are  the  statute  does  not  intimate ;  it  is  left  to  be 
decided  by  the  general  rules  of  law. 

Where  a  partial  revocation  is  set  up,  arising  from  a  change  in 
the  condition  of  the  property  devised  ;  as  by  an  alienation  of  the 
estate,  Hawes  v.  Humphrey,  9  Pick.  350 ;  or  by  a  change  in  the 
devisor's  title  or  interest  in  it,  Ballard  v.  Carter,  5  Pick.  112 ; 
such  revocation  is  easily  deduced  from  the  facts  of  each  case, 
under  familiar  rules  of  law.  But  an  entire  revocation  by  impli- 
cation of  law  is  limited  to  a  very  small  number  of  cases.  The 
marriage  of  a  feme  sole  is  held  to  be  a  revocation  of  her  previous 
will  [see  cases  on  this  point,  ante],  or  at  least  a  suspension  ;  for 
there  may  be  some  doubt  on  that  point,  But  in  case  of  a  man, 
a  rule  has  been  adopted  from  the  civil  law,  after  some  struggle, 


LAPSE   OF   TIME.  323 

but  is  now  firmly  established,  that  marriage  and  the  birth  of  a 
child  shall  be  held  to  be  an  entire  revocation.  It  is  founded  on 
the  presumption,  that,  if  the  will  had  been  made  under  the  altered 
circumstances,  it  would  not  be  made  as  it  was.  It  might  exclude 
one  who  would  be  heir  to  the  whole  estate.  Even  after  the  rule 
had  gone  thus  far,  it  was  still  regarded  as  doubtful  whether  it 
could  extend  to  a  posthumous  child.  But  this,  on  great  delibera- 
tion, was  held  to  be  within  the  principle  of  the  rule.  Doe  v. 
Lancashire,  5  T.  R.  49. 

But  where  the  facts,  on  which  such  revocation  is  ordinarily  im- 
plied, have  been  contemplated  and  provided  for  in  the  will,  no  such 
presumption  arises,  and  the  will  is  not  revoked.  Kenebel  v.  Scraf- 
ton,  2  East  530. 

We  state  a  few  of  these  leading  cases,  and  the  principles  on 
which  they  are  founded,  to  show  how  far  the  present  case  is  from 
coming  within  the  exception  of  the  statute  of  wills,  respecting  the 
revocation  of  a  will  by  implication  of  law,  from  the  changed  con- 
dition of  the  testator.  The  death  of  the  wife  in  the  present  case 
could  have  no  effect.  She  had  a  life  interest  only,  and  the  death 
of  a  devisee  is  a  contingency  always  in  view.  The  death  of  a 
daughter,  under  any  circumstances,  could  have  no  such  effect ;  but 
in  the  present  case  her  legacy  would  not  lapse,  as  she  left  several  de- 
scendants, who  would  take  it.  Rev.  Sts.,  c.  62,  sec.  24.  The  birth  of 
a  posthumous  child  could  have  no  effect,  for  his  birth  was  contem- 
plated and  provided  for  by  the  will  ;  besides,  all  children  not  pro- 
vided for  by  will,  including  posthumous  children,  are  provided  for 
by  law.    Rev.  Sts.,  c.  62,  sees.  21,  22.    Bancroft  v.  Ives,  3  Gray  367. 

2.  The  only  other  circumstances  intimated  as  ground  of  revoca- 
tion of  this  will,  are  the  increase  in  value  of  the  real  estate,  and 
the  long-continued  insanity  of  the  testator,  which  disabled  him 
from  altering  his  will.  The  former  circumstance  alone  would 
have  no  weighl  ;  and  it  is  only  the  great  length  of  time,  during 
which  this  disability  lasted,  winch  appears  to  give  it  any  plausibility. 
It  is  said  that  a  will  is  ambulatory  during  the  life  of  the  testator, 
because   he   may   at   any  t  iinc  alter  or  change  it.      If   this  could  be 

held  to  mean  that  he  must  always  have  the  capacity  to  revoke,  it 
would  follow  that  any  attack  of  insanity  would  operate  as  a  revo- 
cation, which  would  prove  far  too  much.  And  we  have  no  law, 
do  rule  or  maxim,  intimating  a  distinctio  i  in  this  re  ped  between 


324  REVOCATION   AND   REPUBLICATION. 

the  existence  of  insanity  for  a  longer  or  shorter  period  of  duration. 
No  case  was  cited  by  the  counsel,  and  we  are  aware  of  none, 
where  any  insanity  after  making  a  will  is  held  to  revoke  the  will. 
In  Force  &  Hem  Wing's  Case,  4  Co.  61  b,  the  court,  in  comment- 
ing upon  the  ambulatory  character  of  a  will,  to  the  end  of  life, 
suspended  in  case  of  a  woman  who  makes  a  will  and  marries,  and 
thus  by  her  own  act  is  disqualified  by  the  disability  of  coverture, 
say  :  "  It  would  be  against  the  nature  of  a  will  to  be  so  absolute, 
that  he  who  makes  it,  being  of  good  and  perfect  memory,  cannot 
countermand  it.  But  when  a  man  of  sound  memory  makes  his 
will,  and  afterwards,  by  the  visitation  of  God,  becomes  of  unsound 
memory,  (as  every  man,  for  the  most  part,  before  his  death  is,)  God 
forbid  that  this  act  of  God  should  be  in  law  a  revocation  of  his 
will,  which  he  made  when  he  was  of  good  and  perfect  memory." 
This  was  not  an  adjudicated  point  in  the  case;  but  it  was  put  by 
way  of  illustration,  as  an  unquestionable  rule  of  law,  and,  as  such, 
is  an  authority  entitled  to  respect. 

The  court  are  of  opinion,  that  the  decision  of  the  probate  court, 
adjudging  the  will  of  Clark  Cooley,  under  the  circumstances, 
not  to  have  been  revoked,  was  correct,  and  that  the  decree  allow- 
ing and  admitting  it  to  probate  must  be  affirmed. 

Decree  affirmed. 

7.  Revocation  by  disposal  of  property  affected.  Sometimes  a 
testator  having  made  his  will,  afterwards  sells  or  gives  away  real 
or  personal  property  thereby  devised  or  bequeathed.  Such  acts 
of  course  nullify  the  practical  operation  of  the  will,  either  in  part 
or  in  full,  but  the  instrument  itself  is  not  thereby  revoked.1 

8.  Revocation  where  the  will  is  burnt,  torn,  cancelled,  obliter- 
ated,2 or  destroyed,  with  the  intention  of  revoking  it,  either  by 


1  See  2  N.  T.  R.  S.  65,  sec.  48. 

2  Under  the  Statute  of  Frauds,  part  of  a  will  might  be  revoked  by  oblitera- 
tion. Swinton  v.  Bailey,  L.  R.  1  Exch.  D.  110.  So  under  the  present  Eng- 
lish Statute  of  Wills,  if  the  part  obliterated  is  rendered  illegible.'  Vict.,  c.  26, 
§  21.  For  cases  of  revocation  of  part  by  tearing,  obliteration,  etc.,  see  In 
Goods  of  Woodward,  L.  R.  2  P.  &  D.  206;  Christmas  v.  Whinyates,  3  Sw.  & 
Tr.  81;  Matter  of  Kirkpatrick,  22  N.  J.  Eq.  463;  Clark  v.  Scripps,  2  Roberts. 
563  (566).  But  under  the  present  New  York  statute  there  cannot  be  a  revoca- 
tion of  a  part  by  obliteration.     Lovell  v.  Quitman,  88  N.  Y.  377. 


LAPSE   OF   TIME.  325 

testator  himself,1  or,  under  the  terms  of  the  controlling  statute, 
by  another  for  him.3  As  on  the  other  points,  the  statutes  vary  in 
form. 

The  following  instances  illustrate  general  principles  equally  ap- 
plicable, whether  the  method  adopted  be  burning,  or  tearing,  or 
any  other  method  where  the  intent  to  revoke  is  requisite.  They 
are  followed  by  a  statement  of  a  number  of  principles  applicable 
respectively  to  the  several  methods  under  the  present  head : 

(a).  Revocation  by  destroying  another  instrument.  Testator 
called  for  his  last  will,  and  another  was  handed  him.  If  he  de- 
stroyed this,  believing  it  to  be  his  will,  with  intent  to  revoke  it 
(which  is  a  question  fur  the  jury),  then  his  act  revokes  the  last 
will.3 

(b).  No  revocation  by  any  act  unless  such  was  the  intention. 
There  must  be  an  animus  revocandi.*  If  testator  should  tear  or 
burn  his  will,  thinking  it  to  be  another  paper,  and  with  no  inten- 
tion of  revoking  his  will,  there  would  be  no  revocation.5  So, 
where  the  testator  destroys  his  will,  under  a  misapprehension  ; ' 
or  begins  to  destroy  it  and  desists  before  completing  the  intended 
act  of  revocation.' 

(c).  It  is  sometimes  said  that  it  requires  less  capacity  to  revoke 

1  If  he  revokes  the  will  himself  by  tearing,  etc.,  no  witnesses  are  required  for 
the  validity  of  the  act.     Timon  v.  Claffy,  45  Barb.  438. 

1  If  the  controlling  statute  requires  that  where  the  act  of  tearing,  etc.,  is  done 
by  another,  ii  must  be  done  in  testator's  presence,  this  requirement  cannot  be 
waived  by  testator.  Goods  of  Dadds,  Dea.  &  Sw.  290.  It  is  an  essential  requi- 
site, like  the  requirement  that  witnesses  must  sign  "in  the  presence  of  the 
testator";  sen  ante,  p.  267  et  sn/. 

Pryor  v.  Coggin,  17  Ga.  414  ;  Smiley  v.  Gambill,  2  Head.  (Tenn.)  164. 

4  In  cases  where  the  facts  proved  are  such  as  to  warrant  a  finding  of  revoca- 
tion if  8Uch  was  the  intent,  testator's  declarations,  made  either  before  Or  after 
the  act  relied  on,  are  admissible  on  the  question  of  intent.      Pickens   v.    Davis, 

184   Mass.  262;  Sugden  v.  St.   Leonards,   l   P.  I).  164;  Matter  of  Johnson's 

Will,  10 Conn.  .">M7.     Compare  also  cases  on  animus  ttstanili 

'■■  Hums  v.  Burns,  l  s.  &  R.  296;  and  see  opinion  in  Burtenshaw  \.  Gilbert, 
1  ( >owp.  49. 

'■  As,  fur   in-t.mce,  if  he  believed    it    not    properly  executed,  ami,  en  thai  ac- 
count, only,  lore  it  up.      [n  Goods  Of  Thornton,   M   P.  I>    82;   or  if  he  erroneous- 
ly believed  that  a  later  will.  Intended  to  supersede  die  earlier,  was  duly  exe- 
cuted.    Onions  v.  Tyrer,  1  I'.  Wins.  848. 
'  Doe  v.  Perkea,  BB.  .V  Aid.  489. 


326  REVOCATION   AND   KEPUBLICATION. 

a  will  than  to  make  one.  This  view  is  probably  based  on  the 
idea  that  revocation  in  itself  merely  requires  a  general  desire 
to  get  rid  of  a  given  instrument  as  a  whole,  while  the  making  of 
a  will  requires  the  capacity  to  summon  before  the  mind,  as  already 
stated,1  various  groups  of  facts.  In  reality,  however,  revocation 
practically  implies  the  capacity  to  summon  before  the  mind,  and 
intelligently  pass  upon  the  same  facts,  the  only  difference  being 
that  in  making  a  will  testator  must  decide  what  he  will  do,  by 
affirmative  provision,  while  in  revoking  it  he  must  decide  with 
equal  definiteness,  though  negatively,  that  he  will  not  make  the 
particular  provisions  previously  decided  on.  The  better  rule  ap- 
peals to  be  that  the  test  of  capacity  to  revoke  is  the  same  as  the 
test  of  capacity  to  make.2 

(d).  If  the  intended  revocation,  though  carried  out  by  appro- 
priate acts,  is  grounded  directly  on  an  erroneous  assumption  of 
facts,  as,  for  instance,  where  a  later  will  revokes  a  legacy  contained 
in  a  former,  on  the  expressed  ground  that  the  legatee  is  dead, 
when  in  fact  he  is  not  dead,  here,  if  the  mistake  as  to  the  essential 
facts  and  grounds  of  revocation  appears  on  the  face  of  the  instru- 
ment, and  is  shown  by  extrinsic  evidence  to  be  false,  no  effect 
will  be  given  to  the  attempted  revocation.3  But  a  distinction 
must  be  carefully  observed  between  cases  where  the  revocation  is 
grounded  directly  on  the  existence  of  the  supposed  fact,  and  those 
where  it  is  grounded  on  advice  from  others  that  such  was  the  fact, 
or  merely  on  testator's  belief  that  such  was  the  fact,  instead  of  on 
the  fact  itself.  In  these  the  revocation  will  be  given  effect,  for 
the  advice,  or  the  belief,  did  in  fact  exist,  and  on  them  testator 
chose  to  rely.4 

PAEOL    EVIDENCE   OF    INTENT   TO   REVOKE. 

It  will  be  seen  that  the  foregoing  ways  in  which  revocation 
may  be  effected  fall  into  two  classes, — first,  where  the  testator  does 
some  act  for  the  very  purpose  of  revoking  his  will,  as,  by  burning 
it;   and   second,  where   some   circumstances   occur  which,  as   a 

1  Ante,  p.  12.  2  Mclntire  v.  Worthington,  68  Md.  203. 

3 1  Jarman  on  Wills,  183  ;  Campbell  v.  French,  3  Ves.  Jr.  321  ;  Doe  v.  Evans, 
10  Ad.  &  El.  228. 
4 1  Jarman  on  Wills,  184. 


PAROL   EVIDENCE   OF   INTENT   TO   REVOKE.  327 

matter  of  law,  and  as  a  collateral  result  perhaps  not  in  fact  con- 
templated by  testator,  produce  a  revocation,  either  partial  or 
entire,  as,  for  instance,  where,  in  some  jurisdictions,  a  woman 
makes  a  will  and  afterwards  marries. 

Now  in  the  first  of  these  classes,  intent  of  the  testator  to  revoke 
his  will  is  a  strictly  essential  element,  and  although  it  consists  in 
a  mental  condition,  or  an  idea  in  the  mind  of  the  testator,  vet  its 
existence,  or  non-existence,  is  in  truth  a  fact  to  prove  which  tes- 
timonv  may  he  admitted.     The  nature  of  the  act  itself,  the  con- 
dition in  which  the  instrument  is  left,  the  circumstances  attending 
the  act,  the  expressions  of  testator  and  others  at  the  very  time, 
may  therefore  be  shown,  in  so  far  as  they  make  up  the  res  gestae. 
All  these  instances  are  well  illustrated  in  the  following  cases.     In 
addition  to  these  facts,  parol  evidence  is  also  admissible  of  testa- 
tor's declarations  made  even  afterwards.     But  just  as,  in  discussing 
the  admissibility  of  testator's  declarations  on  the  issues  of  mental 
incapacity  and  undue  influence,  we  have  already  seen '  that  such 
declarations,  in  so  far  as  they  are  not  part  of  the  res  gestae,  are 
admissible,  not  as  in  themselves  evidence  of  the  allegations  em- 
bodied in  them,  but  only  as  evidence  of  the  state  of  mind,  at  the 
date  of  execution,  of  the  person  making  them  ;  so  also  on  the 
question  of  intent  in  acts  implying  revocation,  testator's  declara- 
tions are  admissible  to  show  his  state  of  mind  in   the  matter  of 
intent,  as  a  fact,  at  the  time  he  did  the  act.     But  they  are  not 
admissible  as  evidence  of   whether,   having  the  state  of   mind 
shown.  In-  did  in  fact  effect  a  legal  revocation.2     Thus  if  he  did 
in  reality  hive  the  intent  to  revoke,  and  did  in  reality  do  acts 
legally  sufficient  to  carry  that  intent  into  effect,  then  his  subse- 
quent declarations,  no  matter  how  positive,  cannot   in  effecl   rees- 
tablish the  will.     Hut  yet  his  declarations  and  conduct  afterwards 
mav  losricallv  20  to  show  that  at  the  time  he  did  the  acts  relied  on 
ae    effecting    revocation,  he   did,  or   did    not,  have    any    intent    to 

revoke  by  those  acts.     And  to  this  extent   and   for  this  purpose 
evidence  of  his  declarations  and  conduct  Is  admissible.' 

1  Ante,  p.  21  I,  - '  1 1  *  I  cases  p.  1 17. 

81  ;  .     .    Stewart,  2  Sw.  .V  Tr,  820. 

Patter  on  v.  Bickey,  82  Qa    r><'> .  Lawyer  v.  Smith,  8  Mich,  til  ;  Ford  v. 
Ford, 7  Humph  92 1  lot  i ;  Boudinot  v.  Bradford,  2  Feate   I  H) :  see  Tn  re  Weston, 
L.  R.  1P.&D.  688;  Collaganv  Burns,57Mi    149;  Pickens  v.  Davis,  184  M 
252. 


328  REVOCATION   AND    REPUBLICATION. 

It  should  be  added,  however,  that  the  authorities  on  this  sub- 
ject are  conflicting,  and  that  Selden,  J.,  after  a  careful  review  of 
the  authorities,  in  a  case  in  the  New  York  Court  of  Appeals,  laid 
down  the  proposition,1  that  on  the  question  of  testator's  intent  to 
revoke,  none  of  his  declarations,  except  such  as  constituted  part 
of  the  res  gestae,  are  admissible  as  evidence. 

However  this  may  be,  the  presumption  of  revocation  arising 
from  the  fact  that  a  will,  once  in  existence,  and  under  testator's 
control,  cannot  be  found  at  his  death,2  may  be  rebutted  by  evidence 
of  his  subsequent  declarations,  at  the  time  of  his  death,  going  to 
show  that  he  had  not  destroyed  it  with  intent  to  revoke.5 

Note. 

For  a  very  full  discussion  of  .Revocation,  citing  and  comparing 
the  American  statutes  and  decisions,  see  notes  to  Randolph  & 
T.'s  Am.  Ed.  of  Jarman  on  Wills,  vol.  3,  p.  783  et  seq. 


TEARING  UNDER  MISAPPREHENSION. 
In  the  Goods  of  Thornton. 

High  Court  op  Justice,  Probate  Division,  1889. 
(14  P.  D.  82.) 

The  testatrix,  Mrs.  Jane  Thornton,  of  No.  28,  Royal  Crescent, 
Bath,  duly  executed  her  last  will  and  testament  on  July  7, 1885, 
and  subsequently  she  executed  four  codicils,  bearing  date  respect- 
ively April,  1887;  March,  1888;  July,  1888;  and  August,  1888. 
On  March  21,  1889,  she  made  a  fifth  codicil,  which  was  duly  exe- 
cuted and  attested.  This  had  been  prepared  for  her  by  her 
solicitor,  and  sent  down  to  her  for  execution,  with  blanks  left  for 
the  date,  and  in  filling  up  these  blanks  she  inadvertently  reversed 
the  day  and  the  month,  so  that  the  codicil  concluded  thus  :  "  In 
witness  whereof  I  have  hereto  set  my  hand  this  March  day  of 
21st,  1889."  Being  under  the  impression  that  the  codicil  was 
thus  rendered  invalid,  she  directed  her  two  grandnieces,  who  were 


1  In  Waterman  v.  Whitney,  given  ante,  p.  84. 
9  See  Index,  "Lost  Will." 

3  Johnson's  Will,  40  Conn.  587  ;  YouDdt  v.  Youndt,  3  Grant  140 ;  see  the 
discussion  of  this  subject  in  Collagan  v.  Burns,  57  Me.  449. 


TEARING    WHILE   INSANE.  329 

present  at  the  execution,  to  tear  the  codicil  into  four  pieces,  to 
inclose  them  in  an  envelope,  and  send  them  to  her  solicitor,  in 
order  that  he  might  prepare  another  copy  for  her  to  execute.  Mr. 
Turner,  on  receiving  the  letter,  pasted  the  four  pieces  of  the 
codicil  together,  and  prepared  another  draft,  but  the  testatrix 
died  before  executing  it. 

Butt,  J.,  admitted  the  codicil  to  probate. 

[Also  Giles  v.  Warren,  L.  It.  2  P.  &  D.  401.] 


TEARING  WHILE   INSANE. 
Brunt  v.  Brunt. 

English  Couiit  of  Probate,  1873. 
(L.  R.  3  P.  &  D.  37.) 

The  plaintiff  propounded  the  will  of  William  Brunt,  late  of 
Sidney  Street,  Commercial  Koad,  Middlesex,  publican,  dated 
November  22d,  1869.     The  defendant  did  not  appear. 

(Feb.  12.)  Sir  J.  Hannen. — In  this  case  a  will  was  propounded 
which  it  was  alleged  the  testator  had  destroyed  when  suffering 
under  delirium  tremens,  that  is,  when  he  was  insane.  The  evi- 
dence satisfied  me  that  the  testator  was  in  an  unsound  state  of 
mind  when  he  tore  up  the  will ;  he  was  suffering  from  delirium, 
and  therefore  not  capable  of  exercising  any  judgment  in  the  mat- 
ter. The  pieces  were  collected  and  put  together,  so  that  the  will 
is  now  restored  to  the  condition  in  which  it  was  before  the 
destruction.  The  testator,  after  the  recovery  of  his  senses,  ex- 
pressed regret  at  what  he  had  done,  and  said  he  would  make 
another  will.1  I  am  of  opinio!)  that  under  these  circumstances 
there  was  no  revocation  of  the  will  by  destruction.  The  act  done 
by  the  testator  can  in  no  sense  be  considered  his  act,  for  lie  was 
then  out  of  his  mind;  so  that  there  has  never  been  anything  at  all 
amounting  to  a  revocation.  After  his  recovery  he  expressed 
regret,  and  proposed  to  make  a  fresh  will.  The  circumstances 
arc  exactly  the  same  as  tln.se  in  Borlase  v.  liorlase.  At  page 
139  Sir  II.  Jenner  Fusl  says:  f  The  deceased  was  at  the  time  (of 
the  destruction  of  the  paper)  in  a  state  of  menial  excitement,  and 

1  Sec  cases  ante,  on  Dec!  rations  by  Testator.  '  4  No.  of  Oa.  100. 


330  REVOCATION   AND   REPUBLICATION. 

insane,  and  not  master  of  his  actions,  and  consequently  not  respon- 
sible for  his  act,  as  if  it  had  been  the  act  of  a  competent  person  ; 
and  consequently  the  attempt  at  destruction,  or  even  the  actual 
destruction  of  the  codicil,  by  a  person  in  such  a  state  of  mind,  has 
no  effect.  The  pieces  of  the  paper  were  saved  and  sealed  up  in  an 
envelope,  with  a  memorandum  setting  forth  the  fact  of  the  tear- 
ing by  the  deceased.  This  attempted  destruction,  therefore,  can- 
not have  the  effect  of  a  revocatory  act.  The  deceased  is  said  to 
have  immediately  recovered  his  faculties,  and  to  have  expressed 
regret  at  the  act.  I  think  this  is  not  improbable,  looking  at  the 
nature  of  the  attacks  he  was  subject  to ;  but  whether  or  not  this 
be  so,  whether  he  did  recover  himself  immediately  after  or  not, 
if  at  the  time  of  the  attempted  destruction  he  was  not  of  sound 
mind,  the  act  can  have  no  effect  upon  the  instrument  he  at- 
tempted to  destroy ;  and  therefore  nothing,  it  appears  to  me,  can 
in  any  way  affect  the  disposition  contained  in  the  codicil."  I 
decree  probate  of  the  will. 

[Also  Sprigge  v.  Sprigge,  L.  R  1  P.  &  D.  608,  given  post.] 

DESTRUCTION  WITHOUT  TESTATOR'S  CONSENT. 
Trevelyan  v.  Trevelyan. 

Prerogative  Court  op  Canterbury,  1810. 
(1  Phillim.  149.) 

Edward  Trevelyan,  Esq.,  died  at  Clifton,  on  the  13th  of  Sep- 
tember, 1807;  no  will  was  found  to  be  in  existence  at  the  time  of 
his  death,  but  it  was  pleaded  that  his  will  had  been  destroyed 
during  his  lifetime  without  his  knowledge. 

The  two  following  codicils  were  before  the  court : 

"  I  bequeath  whatever  money  I  die  pos- 
of  in  my  former  will, 
not  disposed  »  the  produce  of  my 
sessed  of,  .as  well  commissions  in  his  Majesty's  ser- 
vice, as  whatever  may  be  in  my  agent's  hands,  or  else- 
where due  to  me,  in  share  and  share  alike  between  my 
brothers  Walter  and  George  Trevelyan  after  paying  my 
just  debts ;  my  fishing  rods  and  dogs  to  Stackpoole ;  my 
curricle  and  horses  to  Walter  and  George,  these  having 

and  brood  mare 
to  pay  my  debts ;  my  two  colts  .  to  Stackpoole.     I 


DESTRUCTION   WITHOUT  TESTATOR'S   CONSENT.  331 

desire  that  Richards  my  late  servant  a  soldier  in  the 
same  regiment  with   myself  may  have   his  discmwge 
purchased  for  him  if  he  wishes  it. 
"  September  10th,  1807. 

"  Witness,  "  Ed.  Tkevelyan. 

"  Ann  Bowsher, 
"  Grace  Barton. 

"  To  my  late  servant  Richards,  as  well  as  his  dis- 
charge, I  bequeath  all  the  cloaths,  regimentals,  or 
otherwise,  I  may  die  possessed  of;  and  to  Stackpoole 
my  guns. 

"  Ann  Bowsher.  "  Ed.  Tkevelyan. 

"  September  10th,  1807." 

Mr.  Gordon  depose*/, 

"  That  he  was  intimately  acquainted  witli  the  deceased  ;  that 
to  the  best  of  his  recollection  as  to  time,  on  the  22d  of  June,  1807, 
he  dined  at  the  Rev.  George  Trevelyan's,  at  the  parsonage  at  Net- 
tlecombe,  and  he  thinks  Miss  Lyttelton  and  Lady  Elizabeth  Per- 
cival  were  there  on  a  visit,  and  the  deceased  was  also  of  the  party  ; 
when  the  ladies  had  left  the  room  after  dinner,  the  conversation 
turned  upon  the  deceased's  brother's,  the  Rev.  George  Trevel- 
yan's children,  and  the  deponent  observed  that  Henry  Trevelvan, 
one  of  them,  who  was  the  godson  of  the  deceased  and  also  of  the 
deponent,  was  a  fine  child,  the  deceased  agreed  with  him;  after 
talking  for  sometime  of  the  child,  the  deponent  laughing  said, 
if  the  deceased  would  leave  Henry  his  heir,  he  would  leave  him 
also  £1,000;  the  deceased  agreed  to  this,  and  the  deponenl  called 
for  pen,  ink.  and  paper,  and  made  the  deceased's  will,  and  wit- 
nessed it.     To  tin-  best  of  his  recollection  the  will  was  as  follows: 

••'This  is  the  last  will  and  te-t.iineiit  of  Edward 
Trevelvan  of  bis  Majesty's  first  regiment  of  Foot 
Guards;  I  give  bequeath  and  devise  all  my  property 
both  real  and  personal  wherever  and  whatsoever  unto 
my  dear  godson  Henry  Trevelvan,  the  son  <>f  my 
brother  George  Trevelyan  of  Nettlecombe,  and  I 
appoint   the  -aid    Henry   Trevelyan   my  godson    my 

residuary  legatee.' 
"That  having  made  this  will,  lie  read  the  same  all   over   lo   the 


332  REVOCATION   AND   REPUBLICATION. 

deceased ;  that  the  deceased  understood  it,  and  approved  of  it, 
and  set  and  subscribed  his  name  thereto  in  the  presence  of  the 
deponent  who  also  subscribed  his  name  to  it  as  a  witness ;  that 
during  this  proceeding  the  Rev.  George  Trevelyan  reprimanded 
both  the  deceased  and  the  deponent  for  their  folly  and  left  the 
room ;  that  on  tea  being  announced  they  joined  the  ladies,  and 
upon  entering  the  room  the  deceased  observed,  '  We  have  made 
a  man  of  Henry,'  and  they  all  laughed,  but  no  one  was  told  of  the 
particulars  of  the  will ;  that  upon  the  deponent's  return  to  his 
house  he  began  to  reflect  that  the  joke  had  been  carried  to  a 
sufficient  length,  and  that  it  was  incumbent  on  him  to  destroy  the 
will,  supposing  the  deceased  not  really  serious,  and  he  accordingly 
destroyed  it,-  that  he  destroyed  it  unknown  to  the  deceased,  but 
whether  the  deceased  did  or  did  not  remain  ignorant  thereof  till 
his  death  he  cannot  say,  as  he,  the  deponent,  never  affected  the 
least  concealment  of  his  having  destroyed  the  same." 

William  Stackpoole  deposed, 

"  That  when  the  deceased  was  lying  in  his  last  illness  at*CHf- 
ton  he  was  with  him,  as  were  also  his  brother  the  Rev.  Walter 
Trevelyan  and  his  wife  ;  and  Mr.  Walter  Trevelyan  suggested  to 
the  deponent  the  propriety  of  his  brother's  making  his  will ;  upon 
which  the  deponent  immediately  went  into  the  room  and  men- 
tioned it  to  him,  to  which  he  replied  that  he  had  made  his  will 
when  he  was  ill  two  years  before  in  Somersetshire,  which  was 
written  out  by  Gordon,  and  that  it  was  in  favour  of  one  of  his 
brother  George's  children  to  whom  he  was  godfather,  that  Mr. 
Gordon  had  compounded  in  case  he  made  him  his  heir  to  add 
£1,000  to  it ;  to  which  the  deponent  replied,  the  produce  of  his 
commission  he  thought  nevertheless  undisposed  of,  or  any  pay 
that  might  be  due  to  him  ;  therefore  he  took  pen,  ink,  and  paper, 
and  drew  the  first  codicil  in  question."  Mr.  Stackpoole  then 
proceeded  to  depose  in  the  fullest  manner  to  the  deceased's  ap- 
probation and  signature  of  the  codicil,  and  continued  his  evi- 
dence thus : 

"  That  the  deponent  then  went  into  the  next  room,  where  were 
Mr.  and  Mrs.  Walter  Trevelyan,  and  read  to  them  the  codicil, 
when  it  occurred  to  the  deponent  that  it  made  no  mention  of  the 
will  the  deceased  had  often  and  so  lately  said  he  had  executed 


DESTRUCTION   WITHOUT   TESTATOR'S   CONSENT.  333 

and  left  with  a  Mr.  Gordon,  and  that  he  had  not  bequeathed  his 
clothes  of  which  he  usually  had  a  great  many.  He  therefore  re- 
turned to  the  deceased  and  put  the  following  questions  to  him  by 
way  of  ascertaining  his  recollection  in  the  presence  of  Ann  Bow- 
sher,  his  nurse,  all  of  which  he  had  repeatedly  solved  to  the  depo- 
nent:  'Where  is  your  will  ?  at  Edward's?'  'At  Mr.  Gordon's,  a 
particular  friend  of  George's,  in  Somersetshire.'  'Is  it  the  will 
you  have  before  mentioned  to  me  to  have  been  drawn  by  Mi-.  Gor- 
don?' 'Yes.  The  contents  I  have  often  told  you  of;  or  words 
to  that  effect.  '  Is  it  your  intention  that  this  should  interfere  in 
any  way  with  that  ? '  '  No  ;  certainly  not ';  or  words  fully  to  that 
effect.  That  the  deponent  immediately  made  the  interlineation 
'not  disposed  of  in  my  former  will,'  and  asked  the  deceased 
whether  such  were  his  intention ;  to  which  he  replied,  '  Yes.' " 
Mr.  Stackpoole  then  deposed  to  the  writing  and  execution  of  the 
second  codicil  of  the  10th  September,  1807. 

Ann  Bowsher,  nurse  of  the  deceased, 

Spoke  to  the  attestation  of  the  two  codicils  above  mentioned. 

Judgment. 

Sir  John  Niclioll. 

There  can  be  no  doubt  in  law  that  if  a  will  duly  executed  is 
destroyed  in  the  lifetime  of  the  testator  without  his  authority  it 
may  be  established  upon  satisfactory  proof  being  given  of  its  hav- 
ing been  so  destroyed  ;  also  of  its  contents. 

The  question  then  comes  to  the  facts,  and  in  this  case  there  is 
abundant  proof  of  the  execution  and  contents  of  the  instrument., 
as  well  as  of  the  destruction  of  it  without  the  authority  or  knowl- 
edge of  the  deceased.  It  is  not  necessary  to  decide  whether 
the  court  could  receive  evidence  against  the  fact  of  execution  on 
the  ground  that  the  transaction  was  throughout  a  jest;'  it  would 
be  very  dangerous  to  admit  any  such  evidence  of  intention  against 

the  act  ;  though  then;  might  he  such  a  p088ible  ease,  especially  if 
the  paper  it. -elf  contained  anything  ludicrous  or  absurd  in  its  dis- 
position :  against  this  instrument  this  species  of  argument  cannol 
be  maintained  with  effect,  for  the  property  is  bequeathed  to  the 

testator's  own  nephew  and  godson. 


1  See  Nichols  v.  Nichols,  given  ante, 


334  REVOCATION   AND   REPUBLICATION. 

It  appears  also  from  the  evidence  of  Mr.  Stackpoole  that  the 
deceased  was  very  serious  in  this  disposition  of  his  property  ;  the 
codicils  too  are  a  complete  recognition  and  proof  also  that  he  had 
no  knowledge  or  idea  of  the  destruction  of  the  paper. 

Under  such  proof  the  court  is  bound  to  pronounce  for  the  will 
"  as  contained  in  the  deposition  of  the  witness  "  (this  is  the  mode 
I  believe  which  has  been  adopted  on  similar  occasions);  and  for 
the  two  codicils  which  are  sufficiently  proved. 


ACT  OF  REVOCATION  LEFT  INCOMPLETE. 

Doe,  dem.  of  S.  Perkes,  against  E.  Perkes  and  others. 

Court  of  King's  Bench,  1820. 

(3  B.  &  Aid.  489.) 
Ejectment. 

Defendants'  title  depended  on  the  validity  of  the  will  of  Charles 
Perkes,  deceased.  The  will  had  been  duly  executed.  The  ques- 
tion was  whether  it  had  been  revoked.  It  appeared  that  testator, 
in  August,  1816,  had  a  quarrel  with  a  devisee  named  in  the  will, 
and  in  a  fit  of  passion  took  the  will  and  tore  it  twice  through. 
Joseph  Worrall,  who  was  present,  seized  his  arms,  and  the  devisee 
begged  testator's  pardon  and  implored  him  to  desist.  Testator 
then  became  calm,  and  folded  up  the  will  and  put  it  in  his  pocket. 
Subsequently  he  examined  it  and  said  he  was  glad  it  was  no 
worse.  It  was  torn  in  four  parts.  The  judge  left  it  to  the  jury 
to  say  whether  testator,  in  tearing  the  will,  had  completed  all  he 
had  intended,  or  had  desisted  before  doing  so.  The  jury  found 
for  the  defendants. 

W.  E.  Taunton  moved  for  a  new  trial. 

Bayley,  J. — I  think  this  verdict  right.  If  the  testator  had 
done  all  that  he  originally  intended,  it  would  have  amounted  to  a 
cancellation  of  the  will ;  and  nothing  that  afterwards  took  place 
could  set  it  up  again.  But  if  the  jury  were  satisfied  that  he 
was  stopped  in  medio,  then  the  act  not  having  been  completed 
will  not  be  sufficient  to  destroy  the  validity  of  the  will.  Suppose 
a  person  having  an  intention  to  cancel  his  will  by  burning  it, 
were  to  throw  it  on  the  fire,  and  upon  a  sudden  change  of  pur- 
pose, were  to  take  it  off  again,  it  could  not  be  contended  that  it 


REVOCATION. — TORX   PARTLY   THROUGH.  335 

was  a  cancellation.  So  here,  there  was  evidence  from  which  a 
change  of  purpose  before  the  completion  of  the  act,  might  prop- 
erly be  inferred.  The  jury  have  drawn  that  inference,  and  I  see 
no  reason  to  disturb  the  verdict. 

[Abbott,  C.  J.,  and  Holroyd  and  Best,  JJ.,  wrote  opinions  to 
the  same  effect.] 

Rule  refused. 

REVOCATION. -TORX  PARTLY  THROUGH. 
Elms  v.  Elms. 

English  Court  op  Probate,  1858. 
(1  Sw.  &  Tr.  155.) 

This  was  a  question  as  to  the  intention  and  fact  of  revocation 
of  the  will  of  Lieut.  Jacob. 

The  case  was  argued  by  the  Queen's  Advocate  (Sir  J.  D. 
Hardmg)i  Dr.  8j>inks  and  Mr.  J.  D.   Welsby  for  the  legatee. 

Dr.  Phillimore,  Q.  C,  and  Mr.  Coleridge  for  the  next  of  kin. 

The  facts  are  fully  and  minutely  stated  in  the  evidence  of  wit- 
nesses, as  recited  in  the  judgment.  As  regards  the  instrument  in 
question  being  found  by  Cox  in  his  drawer  after  Lieut.  Jacob's 
death,  it  was  suggested  that  the  testator,  being  a  man  of  intem- 
perate habits,  had  left  the  will  in  the  pocket  of  Cox's  mackintosh, 
which  he  wore  when  he  took  leave  of  Miss  Elms,  and  showed  her 
what  he  called  his  will ;  and  that  Cox,  after  Lieut.  Jacob  had  left 
London  for  Southampton  and  India,  carried  it  back  with  him  in 
the  mackintosh  to  Wales  without  bcimr  aware  that  it  was  there. 

( '>//■.  adv.  ''>flt. 

Sir  C.  Cresswell. — This  was  a  question  as  to  whether  Lieut. 
Jacob,  late  of  the  Madras  Native  Infantry,  left  a  will  or  died 
intestate.  It  was  admitted  on  both  sides,  and  on  the  record,  that 
tin-  deceased  in  L856  made  a  will,  which  was  duly  executed  as 
required  by  1  Vict.,  e.  26.  But  it  was  alleged  by  the  defendants 
that  he  afterwards  revoked  that  will,  and  that  it  never  was  re- 
vived.    At  the  hearing  of  the  case  there  was  some  discussion  as 

to   the    party  upon  whom    the  onus  probunill  was  cast.      On  that 

subject  the  remarks  of  Lord  Brougham  in  Waring  v.  Waring.  o" 
Moore,  I'.  ('.  355,  are  well  worthy  of  attention.     !!<■  there  Bays: 


336  REVOCATION   AND   REPUBLICATION. 

"  The  burden  of  proof  often  shifts  about  in  the  progress  of  the 
cause  accordingly  as  the  successive  steps  of  the  inquiry,  by  leading 
to  inferences  decisive  until  rebutted,  cast  on  one  or  the  other  party 
the  necessity  of  protecting  himself  from  the  consequences  of  such 
inferences ;  nor  can  anything  be  less  profitable  as  a  guide  to  our 
ultimate  judgment  than  the  assertion,  which  all  parties  are  so 
ready  to  put  forward  in  their  behalf  severally,  that  in  the  ques- 
tion under  consideration  the  proof  is  on  the  opposite  side." 

Adopting  that  view  of  the  subject,  I  will  proceed  to  consider 
the  whole  of  the  evidence  in  this  case,  and  endeavor  to  ascertain 
whether  the  will,  which  Lieut.  Jacob  made  in  1856,  was  after- 
wards revoked  by  him  or  not.  The  will,  as  brought  into  the 
registry,  was  written  on  five  sheets  of  paper,  which  were  attached 
together  by  tape  at  the  upper  left-hand  corner;  it  appeared  to 
have  been  folded  up  in  the  ordinary  form  of  a  brief ;  it  appeared 
also  to  have  been  half-opened,  so  that  the  sheets,  when  attached, 
were  doubled  only  with  the  top  and  bottom  edges  brought  to- 
gether, and  that  all  the  sheets  had  been  torn  at  the  same  time  from 
the  edge  very  nearly  through,  so  that  only  a  small  portion  of  each 
sheet,  where  it  was  doubled,  held  the  two  parts  together ;  but  no 
one  of  them  was  entirely  torn  through,  so  as  to  divide  it  into  two 
portions.  The  manner  in  which  it  was  reduced  to  that  state  was 
not  left  to  conjecture  or  presumption.  Positive  evidence  was 
given.  It  was  torn  by  the  deceased,  not  by  accident  or  mistake, 
but  by  design,  and  the  question  is,  whether  he  intended  to  revoke 
it  by  so  tearing  it.  The  statute  1  Vict.,  c.  26,  s.  20,  amongst 
other  modes  of  revoking  wills,  mentions  "tearing  by  the  testator 
with  the  intention  of  revoking  the  same."  Now,  by  tearing,  I 
do  not  understand  the  legislature  to  have  meant  that  the  testator 
must  rend  the  will  into  more  pieces  than  it  originally  consisted 
of;  and  therefore,  although  no  one  sheet  of  paper  was  coinpletely 
divided,  I  think  the  tearing  might  be  sufficient  to  revoke,  if  done 
with  that  intention.  But,  in  order  to  make  it  effectual,  he  must 
have  intended  to  revoke  by  so  tearing  it ;  by  which  I  mean, 
that  he  must  have  intended  that  which  he  actually  did  of  itself  to 
have  that  effect  without  more.  In  one  sense  it  may  be  said  that 
he  tore  the  will  with  the  intention  to  revoke  it,  for  no  doubt  he 
had  that  intention  when  he  began  to  tear,  and  as  soon  as  he  had 
torn  it  a  quarter  of  an  inch   he  had  torn  it  with  intention  to 


REVOCATION. — TORN   PARTLY   THROUGH.  337 

revoke ;  but  he  did  not  intend  to  revoke  it  by  that  tearing  only, 
he  intended  to  tear  further. 

And  this  brings  me  to  the  same  question  that  was  considered 
in  Doe  v.  Perkes,  2  B.  &  A.  489.  When  he  ceased  tearing,  had 
he  done  all  that  lie  contemplated  doing  for  the  purpose  of  revok- 
ing ?  If  he  had,  the  revocation  was  complete,  and  he  could  not 
recall  his  act ;  he  could  only  recall  the  will  by  some  of  the  means 
prescribed  by  the  22d  section  of  the  Wills  Act,  which  he  cer- 
tainly did  not  adopt.  But  in  order  to  decide  that  this  will,  which 
was  duly  made,  was  afterwards  revoked,  I  ought  to  be  satisfied 
that  the  testator  did  all  that  the  statute  makes  necessary  to  work 
a  revocation,  viz.,  that  he  tore  it,  meaning  by  that  act  without 
more  to  revoke  it.  And  here  I  must  refer  to  some  of  the  evi- 
dence given  in  the  cause. 

According  to  Mr.  Cox  (who  was  acquainted  with  the  deceased 
at  Caernarvon,  and  in  whose  house  the  deceased  was  from  time  to 
time  staying),  it  appears  they  were  in  London  together  in  Octo- 
ber, 1856,  when  the  deceased  told  Cox  that  he  had  ordered  his 
solicitor,  Mr.  Few,  to  obtain  the  will  from  Major  Watson,  in 
whose  custody  it  was.  Subsequently,  in  the  same  month,  the 
deceased  received  a  letter  from  the  post-office  at  Caernarvon,  con- 
taining the  will.  He  was  then  staying  at  Cox's  house.  He 
desired  Cox  to  read  the  will,  and  to  take  care  of  it  for  him  ;  Cox 
accordingly  put  it  in  a  drawer,  and  he  says  it  was  then  in  a  per- 
fect state.  "  In  May,  1857,"  Cox  says,  "  we  arranged  to  come  up 
to  London  together;  he  told  me  to  put  the  will  in  his'portman- 
tean  :  he  told  me  he  was  going  to  make  a  new  will,  and  that  he 
wished  to  leave  all  his  money  t<>  Miss  Kims,  and  that  he  should 
instruct  Mr.  Few  to  make  one."  It  appears,  however,  thai  cir- 
cumstances prevented  the  new  will  from  being  then  made,  and 
Cox  brought  back  the  existing  will  to  Caernarvon,  where  they 
returned  mi  the  following  day.  Cox  continued  :  "  In  -lime,  L857, 
the  deceased  received  orders  to  go  to  India.  I  again  came  up  to 
Loudon  with  him.      Nothing  was  then    said    about    the  will.      We 

Btayed  two  or  three  days  in  London  and  then  returned  to  Caer- 
narvon. The  deceased  said  he  came  up  to  make  some  arrange- 
ments about  going  to  India.  I  remember  the  L4th  of  August. 
The  deceased  had  been  drinking  almost  a  pint  of  brandy  that 
morning.  Be  was  on  the  sofa,  lb- asked  me  to  go  up  and  fetch 
22 


33S  REVOCATION   AND   REPUBLICATION. 

his  will  out  of  his  portmanteau.  I  did  so.  As  soon  as  he  had  it 
in  his  hand  he  ripped  it,  tore  it ;  as  soon  as  I  saw  what  he  was 
doing,  I  said, '  Stop,  don't  do  that ' — (he  did  stop) ;  '  if  you  do  so, 
Miss  Elms  won't  take  a  penny  of  your  money  unless  you  make  an- 
other will ;  and  as  it  is,  she  will  get  the  greatest  part  of  it.'  He 
said,  '  Oh,  I  shall  make  another  will  when  we  are  up  in  London ; 
I  wish  her  to  have  it  all.'  I  said,  '  If  you  wish  to  destroy  the 
will,  you  had  hetter  burn  it.'  'No,'  he  said,  'you  burn  it.' 
I  said,  '  No,  I  could  not  do  it.'  I  then  asked  if  he  wished  to 
burn  the  will.  He  said,  'No,  I  sha'n't.'  I  then  said,  'I'll 
take  it  up-stairs.'  I  did  so;  he  knew  that  I  took  it  up-stairs." 
In  answer  to  some  questions  which  I  put,  the  same  witness  said : 
"  When  he  tore  it,  he  either  gave  it  me,  or  I  picked  it  up  off 
the  floor ;  I  can't  speak  positively  ;  I  thought  he  picked  it  up  ; 
he  was  on  the  sofa ;  he  did  let  it  fall  out  of  his  hand  on  the  floor ; 
the  will  was  in  his  hand  when  I  said,  '  Stop,  don't  do  that ';  it 
was  on  the  instant.  I  said  it  would  be  time  enough  to  destroy 
that  when  he  had  made  another ;  it  was  all  done  at  one  tear." 
He  further  said :  "  Mrs.  Cowlishaw  was  in  the  room  at  the  time ; 
the  deceased  left  my  house  on  the  16th  of  August, — on  a  Sun- 
day ;  I  went  with  him  to  London ;  we  got  there  on  the  17th, 
and  again  stayed  at  the  Cross  Keys ;  on  the  18th  we  went  to 
Horsham ;  the  deceased  said  he  went  to  Horsham  to  bid  Miss 
Elms  good-bye ;  he  saw  her;  he  borrowed  my  mackintosh ;  Ire- 
turned  to  London  with  him  that  day:  he  told  me  he  had  seen 
her ;  he  seemed  very  much  distressed  ;  he  never  went  out  of  the 
Cross  Keys  till  Wednesday  evening,  when  he  started  for  South- 
ampton ;  I  don't  know  of  his  having  the  will  with  him  when  he 
went  to  Horsham.  In  September,  1857,  I  found  the  will  in  my 
drawer ;  I  received  a  letter  from  Mr.  Few  to  ask  if  the  deceased 
had  left  any  papers  behind  with  me;  he  had  burned  all  the  other 
papers  he  wished  to  destroy  the  day  before  we  last  started  for  Lon- 
don ;  when  we  came  to  the  will,  I  said,  '  Here's  the  will,  Jacob  '; 
he  said,  '  I  shall  make  another  will  when  I  go  to  London  ';  I  put 
the  will  in  the  drawer  in  his  room.  When  Mr.  Few  wrote  to  me 
I  went  to  find  the  will,  and  it  was  in  the  drawer  in  our  room  ;  I 
forwarded  it  to  Mr.  Few ;  I  do  not  know  how  it  came  in  the 
drawer  where  I  found  it."  On  cross-examination  the  witness 
gave  the  same  account.     He  added  :  "  When  I  came  back  from 


REVOCATION. — TORN   PARTLY   THROUGH.  339 

Horsham  with  Lieutenant  Jacob,  I  reminded  him  that  he  should 
make  another  will ;  he  said,  '  I  shall,  but  I  have  not  time  now ; 
if  I  am  taken  ill  on  board  ship  I  shall  be  sure  to  make  my  will ; 
I  should  speak  to  the  captain.'' '  Mrs.  Cowlisbaw,  a  married  sister 
of  Cox,  who  was  staying  in  his  house  on  the  14th  of  August, 
says :  "  I  remember  being  in  the  kitchen  in  company  with  Lieu- 
tenant Jacob  and  Mr.  Cox ;  my  husband  was  in  an  adjoining  par- 
lour; Lieutenant  Jacob  said  to  Cox  :  'Cox,  fetch  my  will  down'; 
Cox  brought  it  ami  gave  it  to  Mr.  Jacob;  Jacob  was  lying  on  the 
sofa  at  full  length  ;  he  took  the  will  and  appeared  as  if  he  would 
tear  it  then  ;  he  did  begin  to  tear  it,  and  I  said,  'Stop';  he  tore 
it  a  little  more;  1  said,  '  Pray,  do  stay.'  Cox  also  said,  '  Don't 
mutilate  it  like  that,  Mr.  Jacob;  Miss  Elms  won't  get  a  penny  of 
your  money  ';  he  was  going  to  tear  it  still  further,  when  I  said, 
'  Pray,  don't,'  and  he  ceased;  lie  let  it  fall  on  the  floor;  he  was 
still  at  full  length  on  the  sofa  ;  in  a  few  minutes  he  rose,  picked 
it  up,  and  said,  'I  will  take  it  to  Cowlisbaw,  then,  to  read;  he 
will  like  to  read  it.'  He  then  went  into  the  parlour  and  took  the 
will  with  him."  .Mi',  .lames  Cowlishaw,  the  husband  of  the  last 
witness,  said:  "I  was  staying  at  Cox's  in  August,  1857.  I  knew 
.Mr.  Jacob  there;  he  frequently  spoke  to  me  about  his  will;  he 
said  he  intended  to  destroy  that  will  and  make  another,  and  leave 
tin-  whole  of  his  property  to  Miss  Elms;  that  he  intended  Major 
Watson's  daughter  not  to  have  the  £1,000  he  had  left  her.  He 
-iid  he  should  not  leave  his  brother  and  sisters  anything.  On  the 
14th  of  August  I  was  sitting  in  the  parlour  reading;  my  wife  and 
Mi-.  Cox  were  in  the  kitchen.  Mr.  Jacob  came  into  the  parlour, 
followed  by  Cox;  he  said  to  me,  'Cowlisbaw,  there  is  my  will; 
read  it."  I  did  so  fir  that  I  could  ascertain  to  whom  he  had  left 
his  money;  he  had   left  a  legacy  of   61,000  to  the  little  girl,  and 

the  whole  of  the  iv.-t  to  M  b>  Kims.  I  handed  it  back  to  him  ;  he 
said,  '  I  mean  to  destroy  this,  and  make  another  in  favour  of  Miss 
Elms.'  Myself  and  Mr.  Cox  said, 'If  you  leave  M  in  this  muti- 
lated -tate,  there  will  be  a  bother  about  it/  Mr.  (\>\  suggested 
to  put  it  iii  the  He,,  in  the  back  kitchen.  Jacob  asked  me  to  do 
bo.  I  said,  '  \<>.  it  is  a  serious  matter:  r  can't  interfere.'  Lieu- 
tenant Jacob  refused  to  burn  it,  and  Cox  said,  '  Well,  Jacob,  if 
you  won't  destroy  it,  I'll  take  it  up-stair-  again.'  lie  did  so. 
Jacob  had  been  drinking  thai  morning  brandj  ;  he  wos  nol  drunk, 


340  REVOCATION   AND   REPUBLICATION. 

he  knew  what  he  was  doing."  Miss  Elms  deposed :  "  I  remember 
his  coming  down  on  the  18th  of  August  before  he  went  to  India. 
I  saw  him  ;  he  said  he  was  going  to  sail ;  he  produced  a  paper 
from  the  pocket  of  the  coat  he  had  on ;  he  said  it  was  his  will. 
He  partly  opened  it,  and  showed  part  of  the  writing ;  I  think  I 
saw  my  name,  but  I  am  not  sure.  I  did  not  see  his  signature ; 
he  said  it  was  a  will  made  in  my  favour,  and  wished  me  to  keep 
it.  I  refused.  I  did  not  observe  whether  it  was  torn  ;  he  opened 
it  very  partially."  (On  the  will  being- shown  the  witness),  "  It 
is  the  same  colour  as  the  paper  I  saw ;  it  was  doubled  up.  I 
thought  it  was  a  journal  when  he  produced  it."  The  act  of  drop- 
ping or  casting  it  on  the  floor  was  no  doubt  relied  on  in  conse- 
quence of  the  dictum  of  Best,  J.,  in  Doe  v.  Perkes;  but  the 
learned  judge  must  not  be  supposed  to  have  ascribed  to  the  act  of 
throwing  the  torn  will  on  the  floor  any  other  operation  than  that  of 
showing  that  he  had  done  all  that  he  intended  to  do.  But  there  his 
hand  had  been  arrested,  and  if  I  am  to  place  implicit  reliance  on 
Mrs.  Cowlishaw's  evidence  in  this  case,  the  testator  was  about  to 
tear  further,  when  she  stopped  him  ;  the  appearance  of  the  paper 
confirms  that.  He  had  torn  the  will  so  nearly  through,  that  one 
cannot  but  conjecture  that  he  meant  to  effect  a  severance  of  the 
parts;  but  that  remained  unaccomplished,  and  I  find  nothing  in 
the  case  upon  which  I  can  assume  any  other  state  of  facts  than 
that  which  Mrs.  Cowlishaw  describes.  Her  memory  may  be  im- 
perfect ;  but  assuming  it  to  be  so,  what  other  evidence  have  I 
before  me?  By  what  testimony  has  any  other  state  of  things 
been  established  ?  The  brother's  evidence  is  not  quite  so  full,  but 
it  leads  to  the  same  conclusion. 

I  do  not  place  reliance  on  what  passed  afterwards, — viz.,  that 
when  he  burnt  other  papers,  he  preserved  the  will,  and  that  he 
showed  it  to  Miss  Elms  as  his  will.  If  it  had  appeared  that  he 
knew  that  the  will  once  torn  with  intention  to  revoke  was  thereby 
revoked,  the  preservation  and  subsequent  exhibition  of  it  to  Miss 
Elms  would  have  tended  to  show  that  he  knew  it  had  not  been 
revoked,  or,  in  other  words,  that  his  hand  had  been  arrested  in 
time,  and  that  he  had  never  completely  revoked  it ;  but  he  very 
probably  supposed  that,  as  long  as  no  parts  of  the  will  had  been 
destroyed,  it  would  still  be  valid,  although  torn  with  intention  to 
revoke,  and  therefore  the  preservation  of  it  is  too  equivocal  an 


INTENTION   TO    KEVOKE,    BUT   NO   ACT.  341 

act  to  be  relied  on  in  forming  any  judgment  upon  this  very  nice 
question.  But  putting  that  out  of  consideration,  upon  the  whole 
of  this  evidence,  dealing  with  it,  as  if  I  were  a  juryman,  I  say 
that  I  am  satisfied,  that  the  instrument  brought  into  the  registry 
was  duly  executed  by  the  deceased  Lieutenant  Jacob  as  his  last 
will  and  testament,  and  I  am  not  satisfied  that  it  was  revoked 
by  him.  I  must,  therefore,  pronounce  for  the  will,  and  grant 
probate  of  it. 

INTENTION  TO  KEVOKE,  BUT   NO   ACT. 
.11  u n dy  v.  Mundy. 

New  Jersey  Prerogative  Court,  1858. 
(15  N.  J.  Eq.  290.) 

Application  for  probate. 

The  application  was  denied  by  the  Orphans'  Court,  and  this 
appeal  was  taken. 

Two  principal  questions  were  involved, — whether  the  will  had 
been  duly  executed  (which  is  here  found  in  the  affirmative),  and 
next,  whether  it  had  been  revoked. 

The  Ordinary.  (After  finding  that  testator  was  competent  to 
make  a  will.) 

There  was  some  testimony  taken  also  in  reference  to  the  can- 
cellation of  the  will.  A  witness  says,  "  I  was  at  his  (testator's) 
house  fifteen  years  ago,  and  Mr.  Mundy  asked  his  wife  for  the 
will,  and  she  said  it  was  at  Piscataway-town  ;  she  said  to  Mr. 
Mundy,  what  do  you  want  of  it?  he  said,  I  want  to  burn  it  up; 
she  said,  it  is  at  I'i -caraway -town  ;  she  said,  when  I  go  down  there 
I  will  get  it;  when  she  came  home,  he  asked  her  if  she  had  got 
the  will — Bhe  said  not — what  do  you  want  of  it?  1  want  to 
barn  it,  ap,  he  said  ;  she  said,  I  have  burnt  it  up;  thai  was  about, 
fifteen  year-  ago."'  If  implicit  confidence  could  be  placed  in  the 
testimony  of  this  witness,  it  would  not  affect  the  validity  <>t  the 
will.  Tin-  will  was  not,  burnt  up.  The  testator  ought  not  to 
have  relied   upon  the  declaration  <>f  his  wife.     If  he  had   aeri- 

ously  desired    to   cancel    the  will,  he   could    have  dour   it   without, 

hiving  the  will  in  his  possession.  The  will  could  be  can- 
celled in  no  other  way  than  by  its  being  burned,  cancelled, 
torn,  or  obliterated    by   the  testator    himself,  Of   in    his   presence 


342  REVOCATION   AND   REPUBLICATION. 

and  by  Ins  direction  and  consent,  or  by  a  revocation  in  writing, 
executed  in  the  same  manner  as  wills  are  required  to  be  executed. 
This  will  was  neither  cancelled  or  revoked  in  the  manner  directed 
by  the  statute. 

(Here  follows  the  consideration  of  the  execution  of  the  will.) 
The  decree  of  the  Orphans'  Court  of  the  county  of  Middlesex 
must  be  reversed,  and  the  will  be  admitted  to  probate.     Letters 
may  be  taken  out  in  this  court,  or  the  proceedings  may  be  re- 
manded, and  letters  taken  out  in  the  court  below. 

TEARING.— SURREPTITIOUS  PRESERVATION. 
Sweet  v.  Sweet. 

Surrogate's  Court,  Oswego  County,  New  York,  1863. 

(1  Redf.  451.) 

Application  for  probate. 

Hull,  S. — From  the  testimony,  it  appears  that  in  1861,  de- 
ceased made  a  will  devising  his  homestead  to  his  wife ;  and  after 
making  liberal  bequests  to  her,  according  to  his  means,  and  ample 
provision  for  his  children,  he  gave  certain  small  specific  legacies 
to  his  mother,  and  his  brothers  and  sisters. 

In  the  fall  of  1862,  he  was  taken  ill  with  pulmonary  disease, 
and  after  being  sick  a  few  weeks,  on  the  3d  of  Nov.,  1862,  while 
confined  to  his  bed,  made  a  codicil  revoking  all  the  provisions  of 
his  will,  and  giving  all  his  property,  real  and  personal,  to  his 
wife.  It  appeared  that  there  were  several  grave  irregularities 
relating  to  the  execution  and  publication  of  the  codicil,  to  which 
it  will  not  be  necessary  to  refer,  for  the  reason  that  another 
point  in  the  case  was  raised  of  more  vital  consequence  to  the 
validity  of  the  instrument  than  the  irregularities  relating  to  its 
execution. 

From  that  part  of  the  testimony  concerning  which  there  was  a 
conflict  or  dispute,  it  appeared  that  about  one  week  after  the 
codicil  was  executed,  and  while  the  deceased  was  confined  to  his 
bed,  he  requested  his  wife  to  hand  him  the  will.  She  at  first 
declined.  He  told  her  that  he  wanted  to  see  the  man  that  drew 
it,  and  his  brother,  the  executor.  She  finally  handed  him  the 
paper.  He  took  it  in  his  hand,  and  holding  it  up  before  him, 
tore  it  into  some  ten  or  twelve  fragments,  and  left  the  pieces  on 


TEARING. — SURREPTITIOUS   PRESERVATION.  343 

the  bed.  He  then  attempted  to  get  up,  but  was  prevented  by 
the  petitioner.  He  became  excited  and  somewhat  exhausted  by 
the  effort. 

She  gathered  up  the  pieces  and  put  them  in  a  desk,  without 
the  knowledge  of  the  deceased,  and  locked  the  desk,  where  the 
paper  remained  in  the  same  condition  until  after  the  deceased 
was  buried. 

The  will  and  codicil  and  certificates  of  the  witnesses  were  writ- 
ten upon  one  sheet  of  paper.  When  presented  for  probate,  the 
several  pieces  had  been  sewed  together  by  thread,  in  such  an  in- 
genious manner  that  the  paper  was  perfectly  legible. 

It  appears  in  evidence  that  the  deceased  did  not  know  that  the 
fragments  of  the  paper  were  preserved  ;  that  afterwards,  he  fre- 
quently spoke  of  having  torn  up  and  destroyed  his  will,  and  ex- 
pressed a  desire  to  recover  his  breath,  that  he  might  be  able  to 
make  another  will. 

In  one  conversation,  while  talking  about  a  will,  the  petitioner 
remarked,  "  You  have  no  will";  and  the  deceased  replied,  "  I 
should  have  had  another  drawn,  if  my  friends  had  not  advised  me 
not  to." 

The  only  testimony  tending  to  show  unsoundness  of  mind  at 
the  time  of  the  destruction  or  revocation  of  the  will,  was  that  of 
the  witness,  who  testified  that  deceased  appeared  excited,  and 
wanted  to  get  up  and  put  on  his  clothes,  and  made  use  of  singular 
language  to  his  daughter  respecting  the  petitioner. 

On  the  contrary,  the  attending  physician  testified  that  he  saw 
nothing  indicating  insanity  or  unsoundness  of  mind  in  the  de- 
ceased; that  in  talking  with  him  soon  after  the  will  was  torn  to 
pieces,  he  appeared  to  be  perfectly  rational  ;  said  the  reason  that  he 
had  torn  it  up  was,  there  were  others  that  he  wished  to  benefit 
besides  -I  alia — the  petitioner. 

A  Dumber  of  other  witnesses  corroborated  the  physician.  From 
all  the  testimony,  it  is  evident  thai  the  deceased  died  with  the  be- 
lief that  his  will  had   been    utterly  destroyed,  and  that   no  part    of 

it  was  in  existence. 

Was  this  a  revocation  of  the  will  within  the  meaning  of  the 
Revised  St  it  utes  \ 

The  statute  prescribes  that  a  will  may  be  revoked  1st.  By  an- 
other will  in  writing;  2d.   By  some  other  writing  of  the  testator, 


344  REVOCATION   AND   REPUBLICATION. 

declaring  such  revocation  or  alteration,  executed  with  the  same 
formalities  with  which  the  will  itself  is  required  by  law  to  be 
executed;  3d.  By  burning,  tearing,  cancelling,  obliterating,  or 
destroying  the  instrument,  with  the  intent  and  for  the  purpose  of 
revoking  the  same;  4th.  By  marriage,  or  changes  in  testator's 
condition  in  life.  (2  Kev.  Stat.  64.)  Under  the  third  requisite 
of  the  statute,  in  order  to  make  the  revocation  complete,  the  act 
must  be  done  animo  revocandi.  The  mere  act  of  tearing  or  can- 
celling is  not  sufficient.  (Jackson  v.  Halloway,  7  Johns.  394; 
Jackson  v.  Pattie,  9  Id.  312 ;  Smith  v.  Hart,  4  Barb.  28 ;  Nelson 
v.  McGitfert,  3  Barb.  Oh.  158 ;  Perrott  v.  Perrott,  14  East  423 ; 
Willard  on  Ex.  123.) 

In  this  case,  the  tearing  and  obliteration  and  destruction  of  the 
instrument  was  as  complete  as  the  deceased  had  the  power  of 
making  it,  in  his  then  state  of  health.  He  saw  it  lying  about  him 
in  scattered  fragments,  evidently  to  him  appearing  so  badly  torn 
as  to  be  incapable  of  restoration.  His  language  before  tearing 
the  paper,  and  his  subsequent  conversation,  clearly  indicate  his 
purpose  at  the  time  to  be,  to  make  a  complete  revocation  of  the 
instrument. 

The  restoration  of  the  instrument  into  a  legible  form  was  no 
act  of  the  deceased.  He  saw  it  in  pieces,  scattered  about  the 
room.  He  expressed  himself  satisfied  that  it  was  no  longer  in 
existence,  and  died  in  the  full  conviction  that  he  had  left  no  will. 

With  this  view  of  the  evidence,  I  must  refuse  to  admit  the 
instrument  to  probate. 

BURNING.— SURREPTITIOUS  PRESERVATION. 
Esther  White  against  James  Casten  and  Wife. 

North  Carolina  Supreme  Court,  1853. 
(1  Jones  L.  197.) 

This  was  an  issue  devisavit  vel  non,  as  to  a  script  purporting  to 
be  the  will  of  Thomas  J.  White,  propounded  by  Esther  White, 
his  widow,  and  opposed  by  James  Casten  and  his  wife,  tried  be- 
fore his  Honor  Judge  Ellis,  at  Fall  Term,  1853,  of  Chowan  Su- 
perior Court. 

His  Honor  Judge  Ellis  instructed  the  jury  that  the  acts  de 


BURNING. — SURREPTITIOUS   PRESERVATION.  345 

posed  to  amounted  to  a  revocation  under  the  statute,  if  done  with 
an  intention  to  revoke. 

Verdict  for  Casten.     Motion  for  a  venire  de  novo.     Motion  re 
fused  and  appeal  to  this  court. 

Nash,  C.  J. — The  question  for  our  consideration  arises  under 
the  act  of  the  General  Assembly  concerning  the  revocation  of 
wills.  Rev.  Statute,  ch.  122,  sec.  12.  By  that  section,  it  is  pro- 
vided, "  that  no  devise  in  writing,  etc.,  or  any  clause  thereof,  shall 
be  revocable,  otherwise  than  by  some  other  will  in  writing,  or  by 
burning,  cancelling,  tearing,  or  otherwise  obliterating  the  same, 
etc."  This  provision  is  almost  in  the  exact  terms  of  the  Statute 
of  Frauds,  in  England,  passed  the  29th  of  Charles  the  Second. 
It  was  stated  at  the  bar,  in  the  argument  here,  that  the  true  con- 
struction of  the  29th  of  Charles,  upon  the  question  raised  here, 
was  in  England  still  unsettled,  and  that  there  was  no  adjudication 
by  this  court,  which  was  a  direct  authority.  This  is  so,  and  we 
must  endeavor  to  extract  from  the  conflicting  English  authorities, 
and  our  own  cases  which  have  a  bearing  upon  the  question,  that 
rule  which  appears  to  us  most  consonant  with  the  statute  and  to 
reason.  Revocation  is  an  act  of  the  mind,  demonstrated  bv  some 
outward  and  visible  sign  or  symbol  of  revocation.  No  act  of 
spoliation  or  destruction  of  the  instrument  will,  under  the  statute, 
revoke  it,  unless  deliberately  done,  animo  revocandi.  Thus,  if  a 
testator,  intending  to  destroy  papers  of  no  value,  ignorantlv  and 
without  an  intention  to  do  so,  throws  his  will  into  the  tire, 
and  it  is  consumed,  or  by  accident  tears  off  the  seal,  it  is  no  revo- 
cation. The  difficulty  lies  in  ascertaining  how  far  the  symbol  of 
revocation  must  extend.  As  to  the  burning,  must  the  will  by 
it  be  literally  destroyed,  in  whole  or  in  part?  or  must  any  portion 
of  it  be  actual) \y  destroyed  ?  It  is  upon  this  point  that  the  English 
cases  differ.  The  first  case  to  which  oar  attention  was  directed, 
was  that  of  Mole  and  Wife  v.  Thomas,  2nd  Sr.  William  Blackstone, 

Rep.  1043.  The  case  was  :  Palin,  the  deceased,  being  sick  in  bed, 
near  the  fire, ordered  his  attendant,  Mary  Wilson,  fco  bring  him  his 
will,  which  she  did.  Be  opened  it,  looked  at  it,  and  tore  a  bit  of  it 
almosl    Off,  then   crumpled  it  in  his  hand  and  threw  it  <>n  the  fire. 

It  fell  off,  and  Mary  Wilson  took  it  up  and  put  it   in   her   pocket. 

Palin  did  DOt  see  her  take   it   up,  but   had   some  suspicion  of  the 

fact,  as  he  asked  her  what  she  was  at,  to  which  she  made  little  or 


346  REVOCATION   AND   REPUBLICATION. 

no  reply.  The  court  ruled  that  it  was  not  necessary  that  the  wil\ 
or  the  instrument  should  be  literally  destroyed,  or  consumed, 
burnt  or  torn  to  pieces.  Throwing  it  on  the  tire,  with  an  intent 
to  burn,  though  it  is  but  very  slightly  singed,  and  falls  off,  is 
sufficient  within  the  statute.  The  case  does  not  inform  us  to 
what  extent  the  fire  had  made  an  impression  on  the  paper;  it 
must  have  been  very  slight.  The  authority  of  this  case  is  said  to 
be  shaken  by  what  fell  from  the  Chief-Justice,  Denman,  in  the 
case  of  Reed  v.  Harris,  33rd  E.  C.  L.  R.  60  [6  Ad.  &  El.  209, 
given  post].  In  commenting  on  the  case  of  Mole  and  Wife, 
he  observes :  "  Doubt  might  be  entertained  now,  whether  the 
proof  there  given  would  be  sufficient  as  to  them,"  meaning 
burning  and  tearing.  High  as  this  authority  is,  we  are  not 
inclined  from  the  expression  of  a  doubt  to  set  aside  the  de- 
liberate and  united  opinions  of  Chief-Justice  De  Grey,  Gould, 
Blackstone,  and  Nares.  But,  in  that  very  case,  both  Pat- 
teson  and  Coleridge  stated,  there  must  be  a  partial  burning 
of  the  instrument  itself,  and  that  any  partial  burning  will  destroy 
it  entirely.  But  independently  of  this,  the  case  of  Mole  v.  Thomas 
is  recognized  by  writers  of  the  highest  authority.  Mr.  Powell, 
at  page  596  of  his  Treatise  of  Devises,  says:  "Upon  this  prin- 
ciple, it  has  been  held,  that  if  any  of  these  acts,  viz. :  tearing, 
burning,  etc.,  be  performed  in  the  slightest  manner,  this,  joined 
with  a  declared  intent,  will  be  a  good  revocation,  because  the 
change  of  intent  is  the  substantive  act,  the  fact  done  is  only  the 
sign  or  symbol,  by  which  that  intent  is  rendered  more  obvious." 
He  then  cites  the  case  of  Mole  v.  Thomas,  as  his  authority.  See 
also  1st  Jarman  on  Wills,  115  to  119;  Lovelace  on  Wills,  347. 
They  both  cite  from  Sir  Wm.  Blackstone,  and  refer  to  the  case 
of  Reed  v.  Harris,  as  showing  that  the  singeing  of  the  cover  of  a 
will  is  not  a  burning  of  the  will,  but  that  there  must  be  a  partial 
burning  of  the  will  itself.  Thus  stand  the  cases  in  England  on  this 
question,  and  upon  the  authority  of  Mole  v.  Thomas,  Judge  Kent, 
in  the  fourth  volume  of  his  Commentaries,  page  532,  says :  "  Can- 
celling in  the  slightest  degree,  with  a  declared  intent,  will  be  a 
sufficient  revocation,  and  therefore,  throwing  a  will  on  the  fire, 
with  an  intent  to  burn  it,  though  it  be  but  slightly  singed,  is 
sufficient  evidence  of  the  intent  to  revoke,"  and  for  this  he  cites 
Mole's  case.     So  Greenleaf,  in  his  first  volume  on  Evidence, 


BURNING. — SURREPTITIOUS   PRESERVATION.  347 

349,  states,  that  when  a  testator  crumpled  his  will,  and  threw  it 
on  the  tire,  with  an  intent  to  destroy  it,  though  it  was  saved 
entire,  without  his  knowledge,  it  would  be  a  revocation,  and  refers 
to  Mole's  case  to  sustain  him.     See  5th  Conn.  11.  168,  Card  v. 
Grinman.     By  a  large  majority  of  these  authorities,  it  appears 
that  the  case  in  Blackstone  is  sustained,  and  approved.     The 
intent  with  which  the  act  is  done  by  the  testator,  must  continue 
through  the  act;  otherwise  it  will  not  be  a  revocation,  as  where  a 
testator,  upon  a  sudden  provocation  by  one  of  the  devisees,  tore  his 
will  asunder,  and  after  being  appeased,  fitted  the  pieces  together, 
and  expressed  his  satisfaction  that  it  was  no  worse,  it  was  held  to  be 
no  revocation.    Here  the  intent  to  revoke  was  itself  revoked  before 
the  act  was  complete.     Doe  and  Perkes,  5th  Barn,  and  Aid.  481 
[iriven  ante].    The  case  of  Hise  v.  Fincher,  10  Iredell  130,  which 
was  referred  to,  does  not  govern  this.     There  the  testator,  who 
was  sick   in  bed,  directed  his  son  to  throw  his  will  into  the^ire; 
instead  of  doing  so,  he,  without  his  father's  knowledge,  threw 
another  paper  in.     This  was  adjudged,  and  certainly   very  cor- 
rectly, to  be  no  revocation.     The  directions  given  were  accom- 
panied by  no  act  or  symbol  on  the  part  of  the  testator,  expressive 
of  his  intention  to  revoke:  his  intention  rested  only  in  words. 

The  principle  which  we  would  extract  from  the  cases  cited,  isy 
that  where  the  revocation  of  a  will  is  attempted  by  burning,  there 
must  be  a  present  intent  on  the  part  of  the  testator  to  revoke, 
and  this  intent  must  appear  by  some  act  or  symbol,  appearing  on 
the  script  itself,  so  that  it  may  not  rest  upon  mere  parol  testimony, 
and  if  the  script  is  in  any  part  burnt  or  singed,  it  is  sufficient  to 
revoke  the  will.  Let  us  now  try  this  case  by  this  principle  or 
rule 

The  case  Btates,  that  the  testator  threw  the  will  into  the  fire, 
with  the  intent  to  revoke  ami  destroy  it;  that,  after  he  had  done 
BO,  he   turned    away,  when    the    plaintiff,  his  wife,  took    the   papCl 

from  the  lire  secretly,  and  concealed  it  iii  her  pocket;  thai  the 
testator,  up  to  his  death,  thought  the;  will  was  destroyed,  an. I  so 
frequently  expressed  himself.  The  writing  was  upon  a  single 
sheel  of  paper,  whirl,  was  burnt  through  in  three  places,  one  near 
either  extremity,  and  in  the  crease  formed  by  the  folding  ol  the 
paper,     h  was  also  Binged  at  the  outer  edges, and  Bcorched  on  the 

Mitside  "or    hark;    that    this  was  done  when  the  paper  WES  thrown 


348  REVOCATION   AND   REPUBLICATION. 

on  the  fire.  No  word  or  letter  of  the  writing  was  in  any  manner 
destroyed  or  obliterated  by  the  burning,  and  the  paper  itself  but 
little  disfigured,  and  in  no  wise  injured,  except  as  above  stated. 

It  will  be  at  once  seen  that  this  is  a  stronger  case  than  that  of 
Mole  v.  Thomas.  There  the  script  was  barely  singed ;  here  it  is 
burnt  through  in  three  different  places,  the  outside  scorched,  and 
the  edges  of  the  paper  singed.  We  are  therefore  clearly  of 
■opinion  that  the  will  was  revoked :  there  was  the  present  intent 
to  revoke — the  act  of  throwing  on  the  fire  with  that  view,  and 
the  symbol  impressed  upon  the  script  itself.  There  was  no  halt- 
ing in  the  intention  of  the  testator,  between  the  commencement 
and  the  completion  of  the  act ;  for,  to  the  time  of  his  death,  he 
believed  the  will  was  destroyed. 

It  is  seen  from  the  cases  cited,  and  the  rule  we  have  laid  down, 
that  the  much  or  little  of  the  burning  of  the  script  is  not  material, 
and*when  the  reason  of  requiring  the  symbol  to  be  impressed  on 
the  script  is  considered,  it  cannot  be  important.  The  symbol  is 
nothing  but  the  act  showing  the  intention  of  the  testator,  and 
when  that  appears  on  the  paper,  the  evidence  from  the  act  is 
complete,  and  the  testator  has  completed  his  intention.  It  would 
be  singular,  that,  if  the  slightest  burning  of  a  house,  on  an  indict- 
ment for  arson,  should  be  sufficient  to  take  the  life  of  the  incen- 
diary, as  it  is,  that  a  similar  burning  should  not,  in  a  civil  case, 
be  sufficient  to  revoke  a  will.  The  language  upon  this  point,  in 
the  act  taking  away  the  benefit  of  the  clergy,  is  the  same  as  in  the 
act  we  are  considering.  Rev.  Stat.,  ch.  34,  s.  7:  "If  any  person 
shall  willfully  and  maliciously  burn,'''1  etc.  If  any  portion  of 
the  building  is  burnt,  it  is  sufficient  to  bring  the  case  within  the 
statute. 

Judgment  affirmed. 

TEARING.— NO  ANIMUS  REVOGAND1. 
Giles  and  Clark  v.  Warren  and  Other§. 

English  Court  of  Probate,  1872. 
(L.  R.  2  P.  &D.  401.) 

The  plaintiff  propounded  the  will  of  Daniel  Giles,  of  Hackney, 
Middlesex,  dated  November  24, 1 866.  Due  execution  was  proved. 
Having  gained  a  belief,  from  talking  with  a  Mr.  Hillstead,  that  the 


BURNING   SURREPTITIOUSLY   PREVENTED.  349 

will  was  invalid,  testator  tore  it  in  pieces  as  useless.  Soon  after, 
thinking  his  belief  might  be  erroneous,  he  picked  up  and  preserved 
the  pieces. 

Lord  Penzance.1 — I  think  in  this  case  there  was  no  revocation. 
The  fact  that  a  testator  tears  or  destroys  his  will  is  not  itself  suffi- 
cient to  revoke  one  properly  executed.  That  is  to  say,  the  bare 
fact.  If,  for  instance,  he  tears  it  imagining  it  to  be  some  other 
document,  there  would  be  no  revocation,  for  there  would  be  no 
animus  revocancli.  He  must  intend  by  the  act  to  revoke  some- 
thing that  he  had  previously  done.  There  can  be  no  intention  to 
revoke  a  will,  if  a  person  destroys  the  paper  under  the  idea, 
whether  right  or  wrong,  that  it  is  not  a  valid  will.  Revocation  is 
a  term  applicable  to  the  case  of  a  person  cancelling  or  destroying 
a  document  which  he  had  before  legally  made.  He  does  not  re- 
voke it  if  he  does  not  treat  it  as  being  valid  at  the  time  when  he 
sets  about  to  destroy  it.  According  to  the  evidence  the  testator,  in 
consequence  of  some  conversation  he  had  had  with  Hillstead,  was 
under  the  impression  that  he  had  made  no  valid  will,  and,  as  being 
useless,  he  tore  the  document  up  and  threw  it  on  the  fire.  That  is 
no  revocation.  W hat  happened  afterwards  was  not  material.  If 
the  will  had  been  once  revoked,  the  testator  could  not  set  it  up 
again  by  subsequent  declarations. 

BURNING  SURREPTITIOUSLY  PREVENTED. 
Doe  dein.  Reed  against  Aliee  Harris. 

Court  op  King's  Bench,  1837. 

(6  Ad.  &  El.  209.) 

Ejectmknt. 

The  lessor  of  the  plaintiff  claimed  as  heir,  the  defendant  ae 
devisee  of  John  Reed.  The  question  was  whether  a  certain  will  of 
.lulm  Reed  had  been  duly  revoked. 

The  testator,  an  old  and  infirm  man.  died   December  31,  L834. 

The  learned  trial   judge  (Patteson)  stated  to  the  jury  that  if  they 

believed  the  evidence  of  Esther  Treharne,  and  were  satisfied  that. 
the  testator  threw  the  will  on  the  lire  intending  to  burn  it.  that 
Alice  Barris  tooi  it  off  against  his  will,  that  he  afterwards  insisted 

1  Sir  .1.  I'.  Wilde,  Judge  <>f  the  Court  «>r  Probate,  waa  on  April  (i,  I860, 
created  Baron  Penzana 


350  REVOCATION   AND   REPUBLICATION. 

on  its  being  thrown  on  the  fire  again,  with  intent  that  it  should  be 
burnt,  and  that  she  then  promised  to  burn  it,  there  was  a  sufficient 
cancellation  within  the  statute.  Verdict  for  plaintiff.  Rule  nisi 
for  new  trial  on  ground  of  misdirection. 

Chilton  aud  James  now  shewed  cause. 

John  Evans  and  E.  V.  Willia?ns,  contra,  were  stopped  by  the 
court. 

Patteson,  J. — I  am  quite  satisfied  that  I  left  this  case  wrongly 
to  the  jury.  I  did  not  see  the  distinction  between  the  present  case 
and  Bibb  dem.  Mole  v.  Thomas,1  as  I  ought.  There  something 
had  been  done  which  the  court  considered  to  be  a  burning  and  a 
tearing  of  the  will.  [In  that  case,]  The  testator  is  described,  not 
as  merely  having  done  something  to  the  corner  of  the  will,  but  as 
having  given  it  "  something  of  a  rip  with  his  hands,"  and  so  tore 
it  "as  almost  to  tear  a  bit  off."  It  is  plain  that,  on  the  production 
of  the  instrument,  it  would  appear  (though  I  do  not  think  that 
important)  that  there  had  been  some  tearing  of  the  will  itself. 
As  the  act  says  that  there  must  be  a  tearing  or  burning  of  the  in- 
strument itself,  a  mere  singeing  of  the  corner  of  an  envelope  is 
not  sufficient.  To  hold  that  it  was  so  would  be  saying  that  a 
strong  intention  to  burn  was  a  burning.  There  must  be,  at  all 
events,  a  partial  burning  of  the  instrument  itself :  I  do  not  say 
that  a  quantity  of  words  must  be  burnt ;  but  there  must  be  a  burn- 
ing of  the  paper  on  which  the  will  is.  I  am  quite  satisfied  that  I 
was  wrong  in  my  direction  to  the  jury. 

Opinions  to  the  same  effect  were  rendered  by  Lord  Penman,  C. 
J.,  and  Coleridge,  J. 

Rule  absolute. 

ONLY  SLIGHT  BURNING. 
Bibb  on  the  demise  of  Mole  and  Wife  v.  Thomas. 

English  Court  of  Common  Pleas,  1776. 

(2  Wm.  Blackstone  1043.) 
Ejectment. 

On  trial  before  Hotham,  Baron,  the  question  was,  whether  a  will 
made  by  one  William  Palin  was  duly  revoked.  It  appeared  in 
evidence  that  Palin  (who  had  for  two  months  together  frequently 

1  2  W.  Bl.  1043  ;  given  post. 


ONLY    SLIGHT    BURNING.  351 

declared  himself  discontented  with  bis  will),  being  one  day  in  bed 
near  the  fire,  ordered  Mary  Wilson,  who  attended  him,  to  fetch  his 
will,  which  she  did,  and  delivered  it  to  him  ;  it  being  then  whole, 
only  somewhat  creased.     He  opened  it,  looked  at  it,  then  gave  it 
something  of  a  rip  with  his  hands,  and  so  tore  it  as  almost  to  tear 
a  bit  off ;  then  rumpled  it  together,  and  threw  it  on  the  fire ;  but 
it  fell  off.     However,  it  must  soon  Lave  been  burnt,  had  not  Mary 
Wilson  taken  it  up,  and  put  it  in  her  pocket.     Palin  did  not  see 
her  take  it  up,  but  seemed  to  have  some  suspicion  of  it,  as  he  asked 
her  what  she  was  at,  at  which  she  made  little  or  no  answer.     He 
at  several  times  afterwards  said,   "  That  was  not  and  should  not  be 
his  will,"  and  bid  her  destroy  it.     She  said  at  first,  "  So  I  will, 
when  you  have  made  another";  but  afterwards,  upon  his  repeated 
enquiries,  she  told  him  she  had  destroyed  it  (though  in  fact  it  was 
never  destroyed),  and  she  believed  he  imagined  it  was  so.     She 
asked  him,  when  the  will  was  burnt,  whom  his  estate  would  go  to  .; 
He  answered,  to  his  sister  and  her  children.     lie  afterwards  told 
one  J.  E.  that  he  had  destroyed  his  will,  and  should  make  no  other 
till  he  had  seen  his  brother  John  Mills,  and  desired  J.  E.  would 
tell  him  so,  ami  that  he  wanted  to  see  him.     He  afterwards  wrote 
to  Mills  in  these  terms:    "Dear  brother,  I  have  destroyed  my  will 
which  I  made,  for  upon  serious  consideration  I  was  not  easy  in  ray 
mind  about  that  will."     Afterwards  desires  him  "to  come  down, 
for  if   I  die  intestate  it    will   cause  uneasiness."     He,   however, 
died  without  making  any  other  will.    The  jury,  with   whom    tin' 
fudge  concurred,  thought  this  a  sufficient  revocation  of  the  will, 
and   therefore  found  a  verdict  for  the  plaintiff,  the  lessee  of  the 
heir-at-law. 

Grose  moved    for  a  new  trial,  because  this  was  not  a  sufficient 
revocation  within  the  statute  of  frauds. 
Davy  and  Adair  shewed  cause. 

And  i»  ,■  tot.  ('"/-.  (/a  Grey,  C.  J.,  Goidd,  Blactetone,  and 
Wares,  JJ.)  -This  is  a  suflficienl  revocation.  A  revocation  under 
the  Btatute  may  be  effected,  either  by  framing  a  new  will  amount- 
ing to  a  revocation  of  the  first,  or  by  some  art  done  to  the  instru- 
ment oi-  will  itself,  \  i/.,  burning,  tearing,  cancelling,  or  obliteration 
and  consent.  Bui  these  must  be  done  a/nimo  revocemdi.  Onyona 
and  Tryers  [Onions  v..  Tyrer] ; '   Hide  and  Bide  [Hyde  v.  Hyde], 

'1   P.  Win      848, 


352  REVOCATION   AND   REPUBLICATION. 

1  Equ.  Cas.  Abr.  409.  Each  must  accompany  the  other  ;  revoca- 
tion is  an  act  of  the  mind,  which  must  be  demonstrated  by  some 
outward  and  visible  sign  or  symbol  of  revocation.  The  statute 
has  specified  four  of  these ;  and  if  these  or  any  of  them  are  per- 
formed in  the  slightest  manner,  this,  joined  with  the  declared  in- 
tent, will  be  a  good  revocation.  It  is  not  necessary  that  the  will, 
or  instrument  itself,  be  totally  destroyed  or  consumed,  burnt,  or 
torn  to  pieces.  The  present  case  falls  within  two  of  the  specific 
acts  described  by  the  statute.  It  is  both  a  burning  and  a  tearing. 
Throwing  it  on  the  fire,  with  an  intent  to  burn,  though  it  is  only 
very  slightly  singed,  and  falls  off,  is  sufficient  within  the  statute. 
Kule  discharged. 

SIGNATURE  TORN  OFF. 

In  the  Goods  of  Samuel  William  L-ewis  (deceased),  on 

motion. 

English  Court  op  Probate,  1858. 

(1  Sw.  &  Tr.  31.) 

The  deceased,  in  this  case,  died  on  the  22d  of  December,  1857; 
on  the  15th  of  the  same  month,  being  then  in  extreme  illness, 
he  requested  his  cousin,  Robert  Lewis,  to  prepare  a  will  for  him, 
which  was  accordingly  done,  and  the  will  was  duly  executed ;  it 
was  then,  by  the  deceased's  desire,  delivered  to  his  mother,  Rebecca 
Lewis,  who  retained  possession  of  it  till  the  21st  of  December, 
when,  at  the  deceased's  request,  she  redelivered  it  to  him  in  the 
same  state  as  it  had  been  delivered  to  her  after  the  execution.  On 
the  following  day  the  deceased  died,  and  whilst  his  body  was  be- 
ino-  laid  out,  the  will  was  discovered  under  the  bolster  of  the  bed 
upon  which  he  was  lying,  but  that  part  of  it  which  had  contained 
his  signature,  and  the  attestation  clause  and  signature  of  the  sub- 
scribing witnesses,  was  torn  off  and  could  not  be  found.  The  de- 
ceased, after  executing  his  will,  expressed  his  satisfaction  at  hav- 
ing done  so  to  Robert  Lewis,  who  continued  in  attendance  upon 
him  till  his  death.  It  did  not  appear  that  the  deceased,  in  any 
way,  mentioned  the  subject  to  any  other  person.  Under  these 
circumstances  his  widow,  who  was  appointed  executrix  of  the  will, 
wished  to  take  the  opinion  of  the  Court  of  Probate. 

Dr.  Waddilove  moved  the  court  to  decree  probate  of  the  paper 


SIGNATURE   SCRATCHED   AWAY.  353 

to  the  widow  as  executrix  therein  named,  but  presumed  that  the 
court  would  feel  itself  unable  to  do  so. 

Sir  C.  Cresswell :  I  must,  of  course,  reject  your  motion.  The 
widow  is  entitled  to  a  grant  of  letters  of  administration  of  the 
goods  of  the  deceased  as  dead  intestate. 

[Though  a  seal  is  unnecessary,  yet,  if  the  will  states  that  it  is 
"signed  and  sealed,"  tearing  off  the  seal  may  suffice  to  revoke 
it.  "Price  v.  Powell,  3H.&K  341 ;  see  WilUf  White,  25  K  J. 
Eq.  501.  For  other  acts  of  tearing,  Williams  v.  Tyley,  Johns. 
(Eng.)  530.] 

SIGNATURE    SCRATCHED  AWAY. 
In  the  Goods  of  Henrietta  €r.  Morton. 

High  Court  op  Justice,  Probate  Division,  1887. 
(12  P.  D.  141.) 

Henrietta  G.  Morton,  late  of  Newcastle-on-Tyne,  deceased, 
died  January  26,  1887,  having  duly  executed  a  last  will  bearing 
date  September  16,  1853.  After  her  death  the  will,  which  had 
remained  in  her  possession,  was  found  in  a  trunk  with  the  signa- 
tures of  the  testatrix  and  the  attesting  witnesses  scratched  out  as  if 
with  a  penknife.  At  the  bottom  of  the  will  there  was  a  memoran- 
dum in  the  handwriting  of  the  deceased,  dated  "November,  Satur- 
day, 1861 " — but  not  executed — whereby  for  reasons  given  the 
will  was  declared  to  be  cancelled. 

Butt,  J. — I  do  not  think  there  is  any  difficulty  in  the  case. 
What  the  testatrix  did  may  be  regarded  as  lateral  cutting  out.    The 
paper  i-   not   pierced,  but  the  signatures  are  scratched  away.     I 
think  the  will  has  been  revoked,  and  I  grant  administration  to  tin 
applicant. 

[So  cutting  <»iit  the  signature:  Eobbs  v.  Knight,  1  Curt.  7<is.J 

CANCELLATION  op  SIGNATURES. 
Semmei  v».  Semmei  e1  al. 

Maryland  Court  <>v  Appeals,  1826. 
(7  Harr.  A  .1   888  I 

Appeal  from  a  decree  of  the  ( >rphans'  <  lourl  of  ( lharlee  <  'ounty, 
refusing  to  admit  to  probate  and  record  a  paper  offered  a.-  the  last 
will  ami  testamenl  of  [gnatiua  Semmes,  deceased. 
28 


354  REVOCATION   AND   REPUBLICATION. 

The  cause  (which  is  sufficiently  explained  in  the  opinions  deliv- 
ered by  this  court)  was  argued  before  Buchanan,  Ch.  J.,  and 
Earle,  Martin,  Stephen,  Archer,  and  Dorsey,  J  J. 

Buchanan,  Ch.  J.,  delivered  the  opinion  of  the  court.  It  is  ob- 
jected, on  the  part  of  the  appellant,  that  the  Orphans'  Court  did 
wrong  in  not  admitting  to  probate  a  paper,  purporting  to  have  been 
a  duly  executed  will  of  Ignatius  Semines,  on  two  grounds :  First, 
Because  the  obliterating  the  name  of  Ignatius  Semmes,  and  also  the 
names  of  the  three  subscribing  witnesses,  does  not  appear  to  have 
been  done  by  the  deceased ;  and,  secondly,  That  if  it  was,  it  did 
not  amount  to  a  revocation  of  the  will. 

With  respect  to  the  first  proposition,  it  does  not  appear  to  admit 
of  a  doubt,  that  each  obliteration  was  made  by  the  deceased,  Igna- 
tius Semmes. 

The  memorandum  at  the  foot  of  the  paper,  and  just  below  the 
signatures,  in  these  words :  "  In  consequence  of  the  death  of  my 
wife,  it  is  become  necessary  to  make  another  will,"  and  signed 
Ignatius  Semmes,  is  admitted  to  be  in  his  handwriting.  The  oblit- 
erations were  made  by  drawing  a  pen  frequently,  and  in  different 
directions,  across  his  own  signature,  and  the  names  of  the  subscrib- 
ing witnesses ;  and  the  ink  with  which  it  was  done,  is  proved  to 
have  been  the  same  with  which  the  memorandum  at  the  foot  of 
that  paper  was  written.  Hence  it  is  manifest,  that  the  oblitera- 
tions, and  the  memorandum,  were  simultaneous  acts,  and  by  the 
deceased  himself ;  and  it  would  be  straining  overmuch  to  admit 
the  supposition,  that  it  might  have  been  surreptitiously  done  by 
another,  in  the  absence  of  any  testimony  to  cast  the  slightest  shade 
of  suspicion  upon  anybody.  The  memorandum  must  be  consid- 
ered as  connected  with  the  obliterations  as  a  part  of  the  res  gestae, 
and  as  explanatory  of  the  transaction.  It  is  equivalent  to  a  decla- 
ration, that  he  had  made  the  obliterations,  for  the  reasons  assigned 
(the  death  of  his  wife),  which  made  it  necessary  to  make  another 
will. 

Considering  then  the  obliterations  to  have  been  made  by  the  de- 
ceased, the  second  objection  presents  itself,  to  wit,  that  the  will 
was  not  thereby  revoked  ;  in  support  of  which  several  authorities 
were  cited  and  relied  on  in  argument,  but  none  of  them  sustain  the 
proposition,  and  it  would  be  somewhat  strange  if  they  did. 

In  Onion  vs.  Tyrer,  1  P.  Williams  343,  the  deceased,  by  a  wi* 


SIGNATURE   SCRATCHED   AWAY.  o.M 

duly  executed  to  pass  real  estate,  devised  lands  to  trustees,  to  cer- 
tain uses,  and  afterwards  made  another  will  devising  the  same  lands 
to  other  trustees,  but  to  the  same  uses,  with  a  clause  of  revocation 
of  the  first,  and  attested  by  three  witnesses,  who  did  not  sign  their 
names  in  the  presence  of  the  testator.  Supposing  the  second  will 
to  be  duly  executed  to  pass  real  estate,  the  testator  caused  the  first 
to  be  cancelled.  But  it  was  determined,  that  the  witnesses  to  the 
second,  not  having  signed  their  names  in  the  presence  of  the  testa- 
tor, it  was  void  as  to  the  land,  and  could  not  therefore  have  the 
effect  to  revoke  the  former;  and  the  cancelling  of  the  first  will, 
under  the  presumption  that  the  second  was  good  and  effectual,  was 
held  not  to  amount  to  a  revocation  of  it,  on  the  ground  that  it  was 
done  by  mistake.  The  case  of  Hyde  vs.  Hyde,  8  Yin.  Al>.  142, 
was  clearly  a  case  of  mistake.  And  the  case  of  Mason  vs.  Limbrey, 
eited  by  Lord  Mansfield,  in  4  Burr.  2515,  was  decided  on  prin- 
ciples not  at  all  applicable  to  this  case. 

The  cancelling  of  a  will  is  said  to  be  an  equivocal  act,  and  not 
to  effect  a  revocation,  unless  it  is  done  animo  revocandi.  And 
where  it  is  a  dependent  relative  act,  done  with  reference  to  an- 
other, which  is  meant  and  supposed  to  be  good  and  effectual,  it  may 
be  a  revocation  or  not,  as  that  to  which  it  relates  is  efficacious  or  not. 
As  where  a  man  having  duly  executed  one  will,  afterwards  causes 
another  to  be  prepared,  and  supposing  the  second  to  be  duly  exe- 
cuted, under  that  impression  alone  cancels  the  first.  In  such  case 
it  has  been  held,  that  on  the  second  turning  out  not  to  have  been 
duly  executed,  the  cancelling  the  first,  being  done  by  mistake  and 
misapprehension,  would  not  operate  as  a  revocation.'  But  never 
where  a  man  has  deliberately  and  intentionally  cancelled  his  will, 
a-  in  this  case,  in  the  entire  absence  of  all  accident  or  mistake,  not- 
withstanding he  may,  at  the  time,  have  intended  to  make  another 
will. 

It  ie  -aid.  and  indeed  it  would  seem  from  the  testimony,  that 
[gnatius  Semmes  <lid  not  intend  to  die  intestate,  but  however  that 

may  be.  we  cannol    make  a   will    for   him.      By    the    will,  which    is 

now  attempted  to  be  sel  up,  he  had  disposed  of  the  whole  estate  to 
his  wile,  in  trust  for  the  "use  and  support  of  herself ,  and  the 


i  1  Jarman  on  Wills,  188  (and   Randolph  &  T.'a  Am.  aote,  vol  L,  p.  894, 

note  17). 


356  KEVOCATION    AND   REPUBLICATION. 

benefit,  education  and  support "  of  his  infant  son  until  he  should 
arrive  at  the  age  of  twenty-one  years,  when  he  bequeathed  one- 
half  of  his  personal  property  absolutely  to  his  wife  ;  but  she  dying, 
he  struck  out  his  own  signature,  and  the  names  of  the  subscribing 
witnesses,  and  made  a  memorandum  at  the  bottom  of  the  will, 
assigning  as  a  reason  for  what  he  had  done,  that  his  wife's  death 
had  rendered  it  necessary  to  make  another  will.  If  that  was  not 
a  revocation,  it  would  be  found  difficult  to  revoke  a  will  by  cancel- 
ling. In  Burtenshaw  vs.  Gilbert,  1  Cowp.  49,  which  was  cited  in 
argument,  there  were  two  wills,  and  after  the  death  of  the  party, 
the  second  will,  with  a  duplicate  of  the  first,  which  he  had  kept 
himself,  were  found  together  among  his  papers  both  cancelled ; 
and  it  was  proved  that  he  had  sent  for  an  attorney  to  prepare  an- 
other will,  but  lost  his  senses  before  it  could  be  done.  It  was  not 
doubted  that  the  second  will  was  revoked.  The  only  question 
raised,  was  whether  the  revocation  of  the  second  will  did  not  set 
up  the  uncancelled  duplicate  of  the  first,  and  it  was  determined 
that  it  did  not.    That  case  surely  cannot  be  called  in  aid  of  this  will. 

Decree  affirmed. 

WILL   NOT   FOUND. — PRESUMPTION. 

The  general  rule  is,  that  if  it  is  shown  that  a  will  was  in  exist- 
ence in  testator's  lifetime,  and  in  his  custody,  and  that  it  could  not 
be  found  at  his  death,  it  will  be  presumed  that  he  destroyed  it 
animo  revocandi.1  But  this  presumption  may  be  rebutted,2  as 
illustrated  in  the  following  cases. 

WILL   NOT  FOUND.— INSANE    TESTATOR.— NO    PRESUMPTION. 

Sprigge  v.  Sprigge. 

English  Court  of  Probate,  1868. 
(L.  R.  1  P.  &  D.  608.) 

The  testator,  Oliver  Sprigge,  was  a  surgeon  at  Peterborough. 
On  the  15th  of  September,  1S58,  immediately  after  his  marriage, 
he  duly  executed  a  will  in  favour  of  his  wife,  and  of  any  children 
who  might  be  born  of  the  marriage.     In  1863  he  became  of  un- 

1  Betts  v.  Jackson,  6  Wend.  173  ;  Idley  v.  Bowen,  11  Wend.  227 ;  Lillie  v. 
Lillie,  3  Hagg.  184. 
*  Colvin  v.  Fraser,  2  Hagg.  266  (325) ;  Welch  v.  Phillips,  1  Moo.  P.  C.  299. 


WILL   NOT  FOUND. — WHEN   NO   PRESUMPTION.  357 

sound  mind,  and  in  November,  1865,  he  was  confined  in  a  lunatic 
asylum,  where  he  remained  until  his  death  on  the  3d  of  December, 
1867. 

The  plaintiff,  as  executrix,  propounded  the  contents  of  the  will 
as  contained  in  a  copy.  It  was  proved  that  the  will  was  the  same 
as  the  copy  propounded ;  that  after  the  execution  it  was  in  the 
custody  of  the  deceased,  and  it  remained  in  his  custody  ;  that  after 
his  death  search  was  made  for  it,  and  it  could  not  be  found.  There 
was  no  evidence  of  destruction  of  the  will,  and  the  latest  date  at 
which  it  was  proved  to  have  been  in  existence  was  about  two 
months  after  its  execution,  when  it  was  seen  in  the  deceased's 
desk.  The  defendants,  who  were  the  children  of  the  marriage, 
and  the  only  next  of  kin  of  the  deceased,  appeared  by  their  guard- 
ian and  pleaded  a  revocation.  The  cause  came  on  for  hearing  be- 
fore the  court,  without  a  jury. 

I  Nov.  17,  1868.)  Sir  J.  P.  Wilde.— The  question  in  this  case 
is  whether,  under  the  circumstances  that  happened,  the  court 
ought  or  ought  not  to  consider  that  the  will  had  been  revoked — 
the  fact  being  that  it  remained  in  the  custody  of  the  testator  from 
the  time  when  it  was  made,  and  that  upon  his  death  it  was  not  to 
be  found.  The  presumption  of  law  in  this  state  of  things,  under 
ordinary  circumstances,  is,  that  it  was  destroyed  animo  revocandi. 
It  appeared  in  this  case  that  the  testator,  during  a  considerable 
portion  of  the  time  that  elapsed  between  the  making  of  the  will 
and  his  death,  was  insane.  The  question,  therefore,  arises,  whether 
the  court  ought  to  apply  the  ordinary  presumption  of  law  to  such 
a  case.  The  case  of  Harris  v.  Berrall1  was  cited,  and  I  am  of 
opinion  that  it  is  an  authority  directly  in  point.  The  will  in  that 
case  had  been  mutilated,  not  destroyed,  and  the  question  was, 
whether  it  had  been  mutilated  a/nimo  cancellandi ;  the  deceased 
having  been  insane  during  a  portion  of  the  time  between  the  exe- 
cution ami  her  death.  Sir  C.  Cresswell  said:2  "  If  there  had  been 
no  evidence  to  fix  one  time  or  another  for  its  mutilation,  I  still 

think  that  it   would  have  Keen  entitled  to   probate.       Bj   1    Viet.,   e. 

26,  every  will  is  required  to  be  executed  as  therein  prescribed.  If 
it  is  once  proved  that  a  will  has  been  duly  executed,  I  hold  that 
it  is  entitled  to  probate,  unless  it  is  also  shewn  thai  it  has  been  re- 


1  Sw.  &  Tr.  153.  «  1  Sw.  &  Tr.  al  pp.  154,  155. 


358  REVOCATION   AND    REPUBLICATION. 

voked  by  one  of  the  several  modes  pointed  out  by  the  statute ; 
and  I  am  of  opinion  that  the  burden  of  shewing  that  it  has  been 
so  revoked  lies  upon  the  party  who  sets  up  the  revocation.  One 
of  the  modes  of  revocation  pointed  out  by  the  statute  is  tearing 
with  an  intention  to  revoke;  but  an  insane  person  cannot  be  said 
to  have  any  intention.  The  will  in  this  case  was  in  the  custody 
of  the  deceased  at  the  time  she  was  of  unsound  as  well  as  of  sound 
mind.  Shortly  before  her  death  it  was  discovered  to  have  been 
torn  by  her.  The  burden  of  shewing  that  it  was  not  done  after 
she  became  insane,  but  at  a  time  when  she  was  of  sound  mind,  is 
cast  upon  the  plaintiff  who  sets  up  the  revocation  of  the  instru- 
ment." I  entirely  agree  with  the  opinion  of  Sir  C.  Cresswell, 
and  the  principle  which  he  lays  down  as  to  a  case  of  mutilation, 
applies  equally  to  a  case  of  destruction.  The  short  proposition  is, 
that  the  burden  of  shewing  that  the  revocation  was  done  not  after 
the  testator  became  insane,  but  when  he  was  of  sound  mind,  is 
cast  on  those  who  set  up  the  revocation.  In  this  case  there  was 
no  evidence  to  shew  when  it  was  done.  Therefore,  those  who 
sought  to  set  up  a  revocation  failed  in  establishing  the  facts  on 
which  the  presumption  of  revocation  would  rest.  The  paper  pro- 
pounded by  the  plaintiff  is  entitled  to  probate.  The  costs  of  all 
parties  will  be  allowed  out  of  the  estate. 

WILL  NOT  FOUND.— WHEN  NO  PRESUMPTION. 
John  Schultz  and  others  v.  William  Schultz  and  others. 

New  York  Court  op  Appeals,  1866. 
(33  N.  Y.  653.) 

Davies,  Ch.  J. — This  action  is  instituted  to  establish  the  will  of 
Frederick  Schultz,  deceased,  on  the  ground  that  the  same  has 
been  lost  or  destroyed  by  accident  or  design.  The  action  was 
tried  by  the  court  without  a  jury,  and  the  following  facts  found : 
That  Frederick  Schultz,  on  the  23d  day  of  October,  1863,  duly 
made  and  executed  his  last  will  and  testament  in  writing,  in  due 
form  of  law,  as  a  will  of  real  and  personal  estate,  and  the  same 
was  duly  attested ;  by  the  terms  of  which  he  did  dispose  of  all  his 
real  and  personal  estate,  and  after  the  execution  thereof,  he  de- 
livered the  same  to  Frederick  B.  Schultz,  as  custodian,  to  be  by 
him  retained  ;  that  Frederick  B.  Schultz  took  such  will  to  hold 


WILL   NOT  FOUND. — WHEN   NO   PRESUMPTION.  359 

and  preserve,  and  carried  the  same  to  bis  residence  for  that  pur- 
pose ;  that  the  provisions  of  that  will  are  clearly  and  distinctly 
proved  by  the  testimony  of  two  credible  witnesses,  and  are  as  set 
forth  in  the  testimony  in  the  record  ;  that  on  the  20th  day  of  Sep- 
tember, 1805,  the  said  Frederick  Schultz  departed  this  life,  with- 
out having  made  any  other  will,  and  leaving  him  surviving  his 
widow,  Elizabeth  Schultz,  and  his  children,  John  F.  Schultz,  Will- 
iam Schultz,  and  Eliza  J.  Teal,  his  only  heirs-at-law  and  next  of 
kin.  And  the  court  found,  as  matter  of  law,  that  the  foregoing 
evidence  was  not  sufficient  to  show  that  the  said  last  will  and  testa- 
ment was  in  existence  at  the  time  of  the  decease  of  the  said  Fred- 
erick Schultz,  or  that  the  same  was  fraudulently  destroyed  in  the 
lifetime  of  the  testator,  and  decided  that  the  complaint  should  be 
dismissed,  and  rendered  judgment  for  the  defendants,  and  which 
judgment,  on  appeal,  was  affirmed  at  the  General  Term.  The 
plaintiffs  now  appeal  to  this  court. 

The  provisions  of  the  Revised  Statutes  of  this  State,  applicable 
to  the  case  now  under  consideration,  are  as  follows : 

Sec.  37.  "  No  will  in  writing,  except  in  cases  hereinafter  men- 
tioned, nor  any  part  thereof,  shall  be  revoked  or  altered,  otherwise 
than  by  some  other  will  in  writing,  or  some  other  writing  of  the 
testator  declaring  such  revocation  or  alteration,  and  executed  with 
the  same  formalities  with  which  the  will  itself  was  required  by 
law  to  be  executed;  or  unless  such  will  be  burnt,  torn,  canceled, 
obliterated,  or  destroyed,  with  the  intent  and  for  the  purpose  of 
revoking  the  same,  by  the  testator  himself,  or  by  another  person 
in  his  presence,  by  his  direction  and  consent;  and  when  so  (lone 
by  another  person,  the  direction  and  consent  of  the  testator,  ami 
the  fact  of  such  injury  or  destruction  shall  he  proved  by,  at  least, 
two  witnee  Section  86  enacts  :  "  Whenever  any  will  of  real 

or  personal  estate  shall  be  lost  or  destroyed  by  accident  or  design, 

the  Supreme  Court  shall  have  power  to  take  proof  of  t  lie  execu- 
tion and  validity  of  BUch  will,  and  to  establish    the  same  as   in    the 

ca  e  of  losl  deed  ."  Section  90  declares,  thai  "  no  will  of  any  tes- 
tator who  shall  die  afto  r  this  chapter  shall  take  effed  as  a  law,  shall 
be  allowed  to  be  proved  as  a  losl  or  destroyed  will,  unless  the  same 
shall  be  proved  to  have  been  in  existence  at  the  time  of  the  deatb 
of  the  testator ;  or  be  shown  to  have  hen  fraudulently  destroyed 
in  the  lifetime  of  the  testator,  nor  nnlese  it-  provisions  shall  be 


360  REVOCATION  AND   REPUBLICATION. 

clearly  and  distinctly  proved  by,  at  least,  two  credible  witnesses,  a 
correct  copy  or  draft  being  deemed  equivalent  to  one  witness."  (3 
R.  S.,  5th  ed.,  p.  144,  etc.) 

The  existence  of  the  will  of  this  testator,  its  due  execution,  and 
its  provisions  were  clearly  and  distinctly  proven  in  the  manner 
required  by  law.  If  the  will  had  remained  in  the  custody  of  the 
testator,  or  it  had  appeared  that,  after  its  execution,  he  had  had 
access  to  it,  the  presumption  of  law  would  be,  from  the  fact  that 
it  could  not  be  found  after  his  decease,  that  the  same  had  been 
destroyed  by  him,  animo  revocandi.  (Jackson  v.  Betts,  6  Wend. 
173 ;  Idley  v.  Brown  [Idley  v.  Bowen,  11  Wend.]  227 ;  Knapp 
v.  Knapp,  10  N.  Y.  276.)  But  that  presumption  is  entirely  over- 
come and  rebutted,  when  it  appears,  as  it  did  in  the  present  case, 
that,  upon  the  execution  of  the  will,  it  was  deposited  by  the  tes- 
tator with  a  custodian,  and  that  the  testator  did  not  thereafter 
have  it  in  his  possession  or  have  access  to  it.  It  is  undeniable, 
therefore,  that  the  testator  himself  did  not  burn,  tear,  cancel,  obliter- 
ate, or  destroy  the  will.  It  does  not  appear,  or  is  it  pretended,  that  it 
was  done  by  another  person  in  his  presence,  by  his  direction  and 
consent.  At  any  rate,  such  injury  or  destruction  has  not  been 
proven  by  two  witnesses.  It  follows  clearly,  therefore,  that  the 
will  of  this  testator  has  never  been  legally  revoked  or  canceled. 

That  it  has  been  lost  or  destroyed  by  accident  or  design  is  con- 
ceded, and  the  Supreme  Court  had,  therefore,  jurisdiction  to  take 
proof  of  the  execution  and  validity  of  the  will,  and  to  establish  the 
same.  But  the  learned  judges  of  the  Supreme  Court  have  sup- 
posed that  it  could  not  be  established  unless  there  was  affirmative 
proof  that  the  will  was  in  existence  at  the  time  of  the  testator's 
death,  or  that  it  was  shown  that  it  was  fraudulently  destroyed  in 
the  testator's  lifetime.  Both  or  either  of  these  propositions  may 
be  established,  as  well  by  circumstantial  as  positive  evidence : 

1.  As  to  the  existence  of  the  will  at  the  time  of  the  testator's 
death,  we  have  the  conceded  fact  of  the  execution  of  the  will,  and 
of  the  deposit  of  the  same  with  a  custodian  for  safe  keeping.  The 
custodian  testifies  that,  after  it  was  delivered  to  him,  at  the  time  of 
its  execution,  he  never  parted  with  its  possession,  but  locked  it  in 
a  trunk,  and  supposed  it  was  there  at  the  time  of  the  testator's 
death.  Upon  search  made  for  it  after  his  death,  it  could  not  be 
found.     There  is  not  a  scintilla  of  evidence  or  a  circumstance  to 


WILL   NOT   FOUND. — PRESUMPTION. — EVIDENCE.        361 

show  that  the  testator  ever  had  possession  of  the  will  after  its  exe- 
cution and  delivery  to  the  custodian.  It  follows,  therefore,  as  a 
legal  conclusion,  that  the  will  was  in  existence  at  the  time  of  his 
death  (if  not  then  fraudulently  destroyed  or  lost),  in  which  event, 
it  being  now  lost  or  destroyed,  either  by  accident  or  design,  it 
should  be  established  as  a  valid  will. 

2.  If  the  will  was  not  in  existence  at  the  time  of  the  testator's 
death,  then  it  follows  equally  clear  that  it  must  have  been  fraudu- 
lently destroyed  in  his  lifetime  or  lost.  The  fraud  mentioned  and 
referred  to  in  this  connection  is  a  fraud  upon  the  testator,  by  the 
destruction  of  his  will,  so  that  he  should  die  intestate,  when  he 
intended  and  meant  to  have  disposed  of  his  estate  by  will  and 
never  evinced  any  change  of  that  intent.  It  is  undeniable,  from 
the  facts  in  the  record,  that  either  this  will  was  in  existence  at  the 
time  of  the  death  of  this  testator,  or  that  it  had  been  destroyed  in 
his  lifetime,  without  his  knowledge,  consent  or  procurement,  or 
accidentally  lost.  If  so  destroyed,  it  was  done  fraudulently  as  to 
him,  and,  in  judgment  of  law,  the  legal  results  are  the  same  pre- 
cisely as  if  it  had  continued  in  existence  up  to  the  time  of  his 
death.  In  either  contingency,  it  was  his  last  will  and  testament, 
and  its  loss  or  destruction,  either  by  accident  or  design,  being 
proven,  it  is  the  duty  of  the  court  to  establish  it  as  the  will  of  this 
testator. 

The  judgment  of  the  Supreme  Court  should  be  reversed  and  a 
new  trial  ordered,  costs  to  abide  the  event. 

Judgment  reversed  and  new  trial  ordered. 

WILL  NOT   FOUND.— PRESUMPTION. -INTERNAL  AND   EX- 
TRINSIC EVIDENCK. 

Patten  v.  Ponlton  ami  Others, 

English  Coubt  op  Probate,  1858. 

(1   Bw.   A-   Tr.   55.) 

Sib  C.  Cr<s.s ,/-,■//.  This  is  a  cause  of  propounding  the  will  of 
Julia  Clarenza,  deceased,  promoted  by  .lames  Patten,  the  executor 
therein  named, against  II.  L  Poulton,  hereldesl  brother,  and  others, 

next  of  kin.  Several  witnesses  were  examined  mi  Patten's  alle- 
gation ;   the   next    of  kin    did    not    bring   in   any   allegation    or  ad 

minister  any   interrogatories.     Tin'  following   fact-  are   proved: 


362  REVOCATION   AND   REPUBLICATION. 

Julia  Clarenza,  formerly  Poulton,  in  1806  married  John  Peche, 
and  by  him  had  three  children,  two  sons  and  a  daughter ;  she  then 
discovered  that  before  the  marriage  Peche  was  married  to  another 
woman,  who  was  still  living,  and  thereupon  immediately  separated 
from  him,  and  never  cohabited  with  him  again.  She  afterwards 
married  Count  Clarenza,  who  died  in  1822,  and  by  him  had  no 
issue.  John  Peche  died  in  1823,  having  made  a  will  in  favour  of 
his  three  children  above  mentioned,  his  property  being  sworn 
under  £3,000.  Julia  Clarenza  was  always  devotedly  attached  to 
her  children,  who  grew  up  under  her  care.  The  daughter  married 
an  Austrian,  one  son  entered  the  Austrian  army,  and  the  other 
settled  at  the  Cape,  and  she  maintained  a  correspondence  with 
them  during  the  whole  of  her  life,  always  manifesting  the  strongest 
affection  for  them,  and  anxiety  for  their  prosperity.  After  Count 
Clarenza's  death  she  lived  at  Blackheath,  in  Kent,  and  when  there, 
often  spoke  to  a  lady  with  whom  she  was  intimate,  of  her  anxiety 
about  them,  and  of  her  intention  to  settle  her  affairs,  so  that  they 
might  enjoy  the  small  property  of  which  she  had  to  dispose.  In 
1837  she  was  about  to  remove  to  Torquay,  and  then  gave  instruc- 
tions in  her  own  handwriting  to  Mr.  Patten,  a  solicitor,  for  the 
preparation  of  her  will.  He  prepared  one  according  to  those  in- 
structions, and,  at  her  request,  consented  to  act  as  executor.  The 
will  was  executed  on  the  10th  of  October,  1857,  and  at  the  same 
time  the  attestation  clause  and  the  names  of  the  attesting  witnesses 
were  copied  on  to  the  draft,  which  Mr.  Patten  retained,  the  will  be- 
ing given  to  the  deceased.  She  afterwards  told  a  Mrs.  Kipps,  an 
intimate  friend  resident  at  Blackheath,  that  she  had  settled  her 
affairs ;  and  in  1844,  writing  to  the  same  lady,  said,  "  My  mind 
seems  now  at  ease,  that  the  £600  is  now  secure  in  the  bank  for  my 
children  in  case  of  sudden  death."  In  October,  1837,  the  deceased 
removed  to  Torquay,  and  remained  there  for  some  time  occupying 
part  of  the  house  in  which  her  brother  R.  L.  Poulton  resided. 
She  afterwards  removed  to  Dawlish,  and  there  occupied  part  of  a 
small  cottage  till  her  death,  which  happened  in  September,  1846. 
Her  brother  thereupon  went  to  Dawlish  and  searched  for  a  will 
without  success ,  when  so  doing  he  burnt  some  papers,  which  ap- 
peared to  him  unimportant,  and  it  was  not  imputed  that  he  had 
intentionally  destroyed  a  will.  The  delay  that  has  occurred  in 
propounding  the  will  having  been  accounted  for,  I  make  no  obser- 


WILL   NOT   FOUND. — PRESUMPTION—  EVIDENCE.        363 

vation  respecting  it.    The  case,  then,  stands  thus :  the  executor  has 
proved  the  due  execution  of  a  will,  and  that  the  original  cannot  be 
found,  and  he  has  given  satisfactory  secondary  evidence  of  the 
contents.     But,  on  the  other  hand,  it  is  said  that,  as  the  will  was 
in  the  keeping  of  the  deceased,  and  at  her  death  could  not  be 
found,  it  must  be  presumed  that  she  destroyed  it  animo  revocandi. 
This  has  sometimes  been  called  a  presumption  of  law  ;  but  I  think 
that  Sir  J.  Nicholl,  in  Colvin  v.  Fraser  (2  Hagg.  325),  and  Parke, 
B.,  in  Welsh  v.    Phillips  (1  Moo.  T.  C  C.  302),   more  correctly 
designate  it  a  presumption  of  fact,  and  there  can  be  no  doubt,  that 
evidence  of  a  will  being  left  in  the  keeping  of  the  party  who  made 
it,  and  that  it  cannot  be  found  at  his  death,  is  sufficient,  in  the  ab- 
sence of  circumstances  tending  to  a  contrary  conclusion,  to  warrant 
an   opinion  that  the   maker  of  the  will  destroyed  it.     But  it  is  a 
presumption  that  prevails  only  in  the  absence  of  circumstances  to 
rebut  it.  and  is.  therefore,  commonly  called  a  prima  facie  pre- 
sumption.    It  may  be  fortified  or  it  may  be  rebutted  by  many  cir- 
cumstances.     Those  commonly  relied  on  arc  declarations  either  of 
good  will  towards  the  parties  benefited  by  the  will,  and  of  an  ad- 
herence to  the  will  as  made,  or,  mi  the  contrary,  of  dissatisfaction 
and  change  of  mind   respecting  them.     In   Saunders  v.  Saunders 
(6  X'-.  ( 'a-.  522)  Sir  II.  Jenner  Fust  said,  "  The  strongest  proof  of 
adherence  to  the  will,  and  of  the  improbability  of  its  destruction, 
arises  from  the  contents  of  the  will  itself."     In  the  present  case  I 
find  no  extraneous  circumstances  to  fortify  and  suppori  the  prima 
fade  presumption  ;  the  lady  changed  her  residence  twice  after  the 
will  was  made,  and  she  <l(.c-  nol  appear  to  have  had  any  place  for 
the  deposit  and  safe  custody  .of  papers  of  importance;  the  prob- 
ability <>('  the  will  !><  ing  lost  by  accident  is  not  therefore  excluded. 
Again,  her  brother  destroyed  some  papers,  the  particular  nature  oi 
which  is  not  ascertained.     It   is  not  suggested  that  he  willfully  de- 
stroyed a  will,  nor  i    it  probable  that  lie  could  destroy  the  will  in 
question,  which  would  be  of  considerable  bulk,  withoul  some  ex- 
amination; but  the  possibility  of  its  being  so  destroyed  is  no1  ex- 
clu  led.     On  the  other  hand  there  are  many  circumstances  tending 
to  negative  the  presumption:  (lie  constant   undeviating  affection 
manifested  by  the  deceased    for  her  children,     thai   the  will  \\;i> 
made  under  the  influence  of  that  feeling  as  expressed  al  the  time 
and  afterwards,     thai   Bhe  never  expressed  a  desire  to  benefit  !>■. 


364  REVOCATION   AND   REPUBLICATION. 

her  will  any  other  person,  and  above  all,  the  fact  that  she  perfectly 
well  knew  that  her  children  were  illegitimate  (although  not  by  any 
fault  of  hers),  and  that  consequently,  if  she  died  intestate,  they 
would  receive  no  part  of  her  property,  but  the  whole  would  be 
divided  amongst  others.  Here  then,  as  in  Saunders  v.  Saunders, 
it  may  be  said,  that  the  contents  of  the  will  itself  show  the  im- 
probability of  its  destruction.  These  circumstances  combined  ren- 
der it  so  improbable  that  the  deceased  would  willfully  destroy  a  will 
made  in  favour  of  her  children,  that  I  cannot,  from  the  mere  cir- 
cumstances of  its  not  being  found,  presume  that  she  did  so.  The 
will  then  having  been  duly  executed,  the  contents  of  it  having 
been  duly  proved  by  secondary  evidence,  and  it  not  being  estab- 
lished that  the  deceased  revoked  that  will,  the  court  must  give 
effect  to  it  by  pronouncing  for  its  force  and  validity,  and  by  de- 
creeing probate  of  the  draft. 

WILL  NOT  FOUND.— PRESUMPTION  REBUTTED. 
Fo§ter's  Appeal. 

Pennsylvania  Supreme  Court,  1878. 
(87  Penn.  St.  67.) 

Before  Agnew,  C.  J.,  Sharswood,  Jfercur,  Gordon,  Paxson, 
Woodward,  and  Truiikey,  J  J. 

Appeal  from  the  decree  of  the  Orphans'  Court  of  Wayne 
County.     The  facts  are  sufficiently  stated  in  the  opinion. 

Agnew,  C.  J. — That  Isaac  P.  Foster  made  and  executed  in  due 
form  of  law  a  will  in  writing  on  or  about  the  5th  of  June,  1875, 
is  an  indisputable  fact.  That  the  contents  of  this  will  are  clearly 
and  fully  proved,  both  by  testimony  and  by  written  memoranda 
in  the  testator's  own  handwriting,  is  equally  plain,  and  no  question 
arises  as  to  the  number  of  witnesses,  the  contents  being  proved  by 
two,  as  well  as  by  the  memoranda  furnished  by  the  testator  him- 
self. The  will  not  being  found  after  the  testator's  death  and  dili- 
gent search,  two  material  questions  arise  upon  the  assignment  of 
errors : 

1.  Whether  the  presumption  of  revocation  by  the  testator  him- 
self is  rebutted  by  the  evidence. 

2.  Whether  the  contents  can  be  proved  by  parol  evidence. 

There  is  ample  evidence  to  rebut  the  presumption  of  a  revoca- 


WILL   NOT   FOUND.— PRESUMPTION   REBUTTED.  365 

tion  by  the  testator.  Many  facts  contribute  to  this  result,  among 
which  these  leading  circumstances  appear.  Isaac  P.  Foster  was 
never  without  a  will  for  the  last  fifteen  years  of  his  life,  having 
had  seven  written  under  the  supervision  of  counsel  and  made 
necessary  by  the  nature  and  amount  of  his  estate,  the  number  of 
his  children,  and  advancements  made  to  some,  and  those  matters 
were  often  dwelt  upon  by  himself.  He,  himself,  regarded  his  will 
of  1875  as  existing  until  and  while  lying  on  his  death-bed,  when 
too  feeble  to  destroy  it  without  assistance.  Up  to  this  time  he 
made  efforts  to  procure  a  codicil  to  alter  the  will  in  a  certain  aspect, 
made  necessary  by  the  failure  in  the  payment  of  interest  on  cer- 
tain bonds,  but  being  prevented  by  the  extremity  of  his  last  illness, 
died  under  a  belief  that  he  had  arranged  with  his  executors  to 
pay  these  legatees  money  instead  of  the  bonds.  These  and  cor- 
roborating circumstances  show  that  the  testator  had  no  thought  of 
a  revocation. 

That  the  presumption  of  a  personal  revocation  can  be  thus  re- 
butted is  shown  by  the  authorities  cited  by  the  appellees.  The 
presumption  of  revocation  arises  from  the  fact  that  the  will  was 
known  to  be  in  the  possession  of  the  testator  himself,  and  that  it 
cannot  be  found  after  his  death.  It  is,  therefore,  a  natural  pre- 
sumption merely,  because  it  cannot  be  supposed  the  testator  would 
part  with  it,  unless  he  intended  to  put  it  out  of  the  way,  and 
because  it  is  out  of  the  way  and  cannot  be  accounted  for,  the  pre- 
sumption that  he  intended  to  revoke  it  arises.  Like  other  natural 
presumptions  drawn  from  evidence,  and  not  declared  <hjxr<\  for 
some  legal  end.  it  must  give  way  to  stronger  evidence  of  the  con- 
tinued existence  of  the  will,  and  the  testator's  reliance  upon  il  as 
the  disposition  he  had  made  of  his  property. 

The  will  then  being  in  existence  at  the  death  of  the  testator  un- 
revoked by  him,  its  loss  or  accidental  destruction  differs  not  from 
the  loss  or  destruction  of  any  other  solemn  instrument,  such  as  a 
deed,  a  note  or  bond,  or  a  record.  The  contents,  therefore,  may 
be  proved  in  like  manner,  as  shown  by  the  authorities  cited.  It 
ie  a  postulate  of  the  question  that  the  testator  left  behind  him  at 

death,  a    la-t   will    in    writing,  legally  executed    and    published,  and 

unrevoked    by  any  acl    or   direction  of  his.      That   the  law  will    not 

tolerate  any  making  of  a  will  for  him  by  other  means  than  hisown 

act   in  writing   duly  executed,  is   clear.       Hut    Mich  B  will  having  a 


366  REVOCATION   AND    REPUBLICATION. 

legal  existence,  yet  accidentally  lost  or  destroyed,  the  establishment 
of  its  contents  is  not  the  making  of  a  new  will,  but  a  restoration 
merely  of  that  which  the  testator  himself  made  and  left  behind 
him  to  govern  his  estate.  There  is  no  greater  sanctity,  in  this  re- 
spect, than  the  restoration  by  parol  evidence  of  other  instruments 
equally  solemn  and  having  an  equal  effect  in  the  disposition  of 
property.  The  law  simply  comes'  in  aid  of  his  own  legally  per- 
formed act,  to  prevent  his  intentions  from  being  frustrated  or 
defrauded.  The  authorities  upon  the  republication  of  wills,  made 
before  the  passage  of  the  act  of  1833,  have  a  bearing  and  may 
therefore  be  cited — some  not  appearing  in  the  paper-books.  Hav- 
ard  v.  Davis,  2  Binn.  406 ;  Jones  v.  Hartley,  2  Whart.  103,  citing 
many  cases ;  Campbell  v.  Jamison,  8  Barr.  498 ;  Jack  v.  Shoen- 
berger,  10  Harris  416 ;  Fransen's  Will,  2  Casey  203.  We  cannot 
perceive  that  the  learned  judge  erred  in  ruling  either  point. 
(Here  follows  a  discussion  of  a  question  of  practice.) 

Decree  of  the  Orphans'  Court  affirmed. 

[Also  Weeks  v.  McBeth,  14  Ala.  474 ;  Minkler  v.  Minkler,  14 
Vt.  125.] 

LOST  WILL.— "WHERE  LOSS  EXPLAINED. 
In  the  Goods  of  Gardner,  on  motion. 

English  Court  op  Probate,  1858. 
(1  Sw.  &  Tr.  109.) 

The  deceased  in  this  case,  a  captain  in  the  38th  Bengal  Light 
Infantry,  made  his  will  at  Cawnpore,  in  the  East  Indies,  in  May 
or  June,  1855.  The  deceased,  his  wife,  and  their  two  only  chil- 
dren, were  in  Delhi  in  May,  1857,  when  the  mutiny  broke  out; 
they  escaped  from  that  city,  leaving  all  their  property  behind  them, 
among  which  was  the  deceased's  writing-case,  in  which  his  will  was 
deposited.  Captain  Gardner  died  at  Kussowlee  on  the  28th  of 
June,  1857,  leaving  his  widow  and  two  only  children,  the  only 
persons  entitled  in  distribution  in  case  of  an  intestacy. 

The  joint  affidavit  of  Mrs.  Gardner  and  of  Lieut.  Hawes,  one  of 
the  attesting  witnesses,  established  the  due  execution  of  the  will  in 
1855,  and  its  contents,  namely,  leaving  all  his  property  to  his  wife, 
and  making  her  sole  executrix.  Mrs.  Gardner  spoke  of  having 
read  it  over,  and  to  having  seen  it  in  her  husband's  desk  as  lately 


WILL   FOUND   MUTILATED.  307 

as  February,  1857,  and  to  her  assurance  that  it   had  not  been  re- 
voked or  destroyed  by  her  husband  prior  to  their  leaving  Delhi 
and  that  since  the  recapture  of  Delhi  nothing  had  been  heard  of 
the  will.     The  property  amounted  to  about  £1,000. 

Dr.  PhUlimore,  Q.  C.,  moved  the  court  "to  decree  probate  of 
the  will  as  contained  in  the  affidavit  to  be  granted  to  the  widow, 
the  sole  executrix  named  therein,  limited  until  the  original  will  or 
a  more  authentic  copy  thereof  shall  be  brought  into  and  left  in  the 
registry  of  the  court."  He  submitted  there  was  before  the  court 
sufficient  proof  of  the  execution  and  contents  of  the  original  will, 
and  cited  Trevelyan  v.  Trevelyan,  1  Phill.  153  [given  ante]. 

Sib  C.  GressweU:  The  case  of  Brown  v.  Brown,  lately  decided 
in  the  Court  of  Queen's  Bench  and  on  which  I  have  already  acted,' 
went  beyond  the  present  case.  There  parol  evidence  was  held 
sufficient  to  prove  the  contents  of  a  will,  and  thereby  revoke  a 
will  of  earlier  date,  which  was  in  existence  at  the  testator's  death. 
I  grant  the  motion. 


WILL  FOUND   MUTILATED— PRESUMPTION. 
Bennett,  Ex'r,  etc.  v§.  Sherrod. 

North  Carolina  Supreme  Court,  1843. 
(3  Ired.  L.  303.) 

Appeal  from  the  Superior  Court  of  Law  of  Martin  County,  at 
Spring  Term,  1843,  his  Honor  Judge  Manly  presiding. 

Thi>wa>  an  issue  to  try  whether  a  certain  instrument  of  writing, 
propounded  by  the  plaintiff,  was  the  last  will  and  testament  of 
John  Sherrof,  deceased. 

After  the  evidence  was  in,  the  counsel  for  the  defendant  asked 
the  court  to  instruct  the  jury,  if  they  believed  the  instrument  of 
writing  was  found  in  the  possession  of  the  deceased  in  a  mutilated 
state,  thai  there  was  a  presumption  of  law  that  the  mutilation  was 
the  act  of  the  deceased,  subject  to  be  rebutted  by  the  parties  pro 
pounding  the  will.     The  court  declined  giving  this  instruction. 

There  was  a  verdict  establishing  the  will,  and  from  the  judgment 
thereon  the  defendant  appealed. 


'  In  the  Goods  of  William  Brown,  l  Bw.  &  Tr.  82.    8  El.  &  in.  876. 


3GB  REVOCATION   AND   REPUBLICATION. 

Daniel,  J. — The  authorities  cited  by  the  counsel  for  the  appellant 
shew,  that,  where  a  will  has  been  duly  executed  and  left  with  the 
testator,  if  it  be  mutilated  in  his  lifetime  while  in  his  possession, 
or  upon  his  death  if  it  be  found  among  his  repositories,  cancelled 
or  defaced,  in  such  cases,  in  the  absence  of  other  proof,  the  tes- 
tator is  presumed  to  have  done  the  act ;  and  the  law  further  pre- 
sumes, that  he  did  it  animo  revocandi.  And  if  the  repository  of 
the  will  was  at  the  same  time  accessible  to  the  testator  and  another 
person  and  the  mutilation  was  done  in  the  lifetime  of  the  testator, 
the  law  would  presume  it  was  done  by  the  testator.  He  had  a 
right  to  do  it,  and  a  fraud  will  not  be  presumed  in  the  other  per- 
son. '  All  the  rules  above  stated,  we  think,  may  be  taken  for  good 
law,  but  it  seems  to  us  that  they  are  not  apposite  to  the  case  now 
before  us.  There  is  no  evidence  in  the  cause,  that  the  will  was 
found  mutilated  in  the  lifetime  of  the  testator,  or  found  mutilated 
among  his  papers  immediately  on  his  death.  It  was  on  the  day 
after  his  death  that  application  was  made  to  his  widow  for  the  will. 
She,  who  is  the  party  defendant  in  this  issue,  acknowledged  that 
the  will  or  paper  was  there,  but  refused  then  to  deliver  it.  She 
then  locked  the  drawer,  where  the  paper  was,  and  put  the  key  in 
her  bosom.  There  is  no  evidence  that  the  will  was,  at  that  time, 
mutilated,  for  her  declarations  then  made  do  not  prove  that  fact, 
but  rather  import  the  contrary.  On  the  second  day  after  the  tes- 
tator's death,  and  after  the  widow  had  every  opportunity  of  muti- 
lating the  paper,  with  which  she  was  dissatisfied,  the  will  was  found 
by  the  plaintiff  in  the  drawer  in  its  present  state.  It  seems  to  us, 
so  far  from  its  being  the  duty  of  the  judge  to  charge  the  jury,  that 
the  law  presumed  this  mutilation  to  have  been  the  act  of  the  tes- 
tator, that  it  would  have  been  erroneous  if  he  had  so  charged.  We 
are  of  opinion  that  the  judgment  must  be  affirmed. 

Judgment  affirmed. 

Per  Curiam. 

[A  principle  similar  to  that  here  applied,  is  also  enforced  in  cases 
of  wills  not  found,  as  already  stated,  where  it  is  not  until  some- 
time subsequent  to  testator's  death  that  search  is  made,  and  in  the 
meantime  a  person  interested  to  destroy  the  will  has  been  in  posi- 
tion to  do  so  if  it  did  exist.  This  is  very  well  illustrated  in  Finch 
v.  Finch,  L.  R.  1  P.  &  D.  371. 

For  the  presumption,  where  will  is  found  mutilated  among  tes- 


MUTILATED   WILL   AMONG   OLD   PAPERS.  369 

tator's  papers,  Christmas  v.  Whinyates,  3  Sw.  &  Tr.  SI ;  Stephens 
v.  Taprell,  2  Curt.  458  (463) ;  In  re  Philp's  Will,  46  N".  Y.  State 
Rep.  356  (the  latter  case,  it  is  to  be  observed,  is  recent,  and  has 
only  been  passed  on  by  the  Surrogate  and  the  General  Term).] 

MUTILATED  WILL  AMONG  OLD  PAPERS. 
Lawyer  v.  Smith. 

Michigan  Supreme  Court,  1860. 
(8  Mich.  411.) 

Error  to  Washtenaw  Circuit. 

Application  for  probate  of  paper  purporting  to  be  the  last  will 
of  Gertrude  or  Gitty  Fletcher.  Granted  by  Probate  Court ;  sus- 
tained at  Circuit  by  verdict  of  jury.  The  contestants  brought 
error. 

Manning,  J.     (After  passing  on  certain  charges  of  error.) 

But  the  judge  erred,  we  think,  in  refusing  to  receive  evidence 
of  the  declarations  of  the  testatrix  that  she  had  destroyed  her  will, 
and  in  not  admitting  a  letter  of  hers,  stating  her  will  was  de- 
stroyed. Such  evidence  is  not  admissible  as  proof  in  itself  of  a 
revocation,  for  the  statute  provides,  "  no  will,  nor  any  part  thereof, 
shall  be  revoked  unless  by  burning,  tearing,  cancelling  or  obliter- 
ating the  same,  with  the  intention  of  revoking  it,  by  the  testator, 
or  by  some  person  in  his  presence  and  by  his  direction  ";  "  or  bv 
some  other  will,  codicil  or  other  writing  executed  in  the  manner 
provided  for  the  execution  of  a  will  ": — Conip.  L.,  sec.  283.'!.  The 
first  we  hear  of  the  will  after  its  execution  in  1824,  is  the  finding 
of  it  by  Feeck  in  1840,  "in  a  barrel  among  a  lot  of  waste  paper, 
newspapers,  pamphlets,  and  some  old  letters."  lie  says,  "il  was 
separated  at  the  top,  and  was  in  a  number  of  pieces,  and  the  dif- 
ferent pieces  were  -cattered  loose  among  the  papers  in  the  barrel." 

It  Consisted    of  a   number  of   half   sheets  of    paper,  some   of  which 

were  separated  in  two  pieces,  ami  a  piece  was  torn  oul  of  the  top. 

He   gathered    them    up,  matched    them,  and    fastened    them   at    the 
top,  and  kept  them  in  his  possession  live  and  a  halt  years.      A   will 

found  as  this  was,  iii  a  barrel  among  old  letters  ami  other  papers 

Of   no  account,  and    in    the   mutilated  condition   stated,  need-  BOme 

explanation  of  these  circumstances  to  admit  it  to  probate.     The 

piece  torn  out  at  the  top  and  the  .reparation  of  the  half  sheets  can 
24 


370  REVOCATION   AND   REPUBLICATION. 

not  be  accounted  for  by  the  age  of  the  instrument.  They  are  evi- 
dence of  violence,  or  an  intentional  injury  to  the  instrument ;  but 
whether  done  by  the  testatrix  or  some  other  person ;  and  if  done 
by  her,  whether  accidentally,  or  intentionally  and  for  the  purpose 
of  revoking  her  will,  were  questions  of  fact  to  be  determined  by 
the  jury.  To  aid  them  in  arriving  at  a  correct  conclusion  on  these 
points,  and  not  as  separate  and  independent  evidence  of  a  revoca- 
tion, we  think  the  declarations  of  the  testatrix  should  have  been 
permitted  to  go  to  the  jury,  for  what  they  were  worth,  under  all 
the  circumstances,  See  opinion  of  Chancellor  Walworth,  in  Betts 
v.  Jackson,  6  Wend.  173. 

(Here  follows  a  consideration  of  the  competency  of  certain  wit- 
nesses.) 

Judgment  reversed  and  a  new  trial  granted. 

The  other  Justices  concurred. 

WHETHER  REVOCATION   REVIVES  A  PREVIOUS  WILL. 
Picken§,  Adm'r  v.  Davis. 

Massachusetts  Supreme  Judicial  Court,  1883. 
(134  Mass.  252.) 

Appeal  from  decree  of  Probate  Court,  admitting  will  of  Mary 
Davis. 

C.  Allen,  J. — The  two  questions  in  this  case  are,  first,  whether 
the  cancellation  of  a  will,  which  was  duly  executed,  and  which 
contained  a  clause  expressly  revoking  former  wills,  has  the  effect, 
as  matter  of  law,  to  revive  a  former  will  which  has  not  been  de- 
stroyed, or  whether  in  each  instance  it  is  to  be  regarded  as  a  ques- 
tion of  intention,  to  be  collected  from  all  the  circumstances  of  the 
case  ;  and  secondly,  if  it  is  to  be  regarded  as  a  question  of  intention, 
whether  subsequent  oral  declarations  of  the  testator  are  admissible 
in  evidence  for  the  purpose  of  showing  what  his  intention  was. 
These  are  open  questions  in  this  Commonwealth.  In  Reid  v.  Bor- 
land, 14  Mass.  208,  the  second  will  was  invalid,  for  want  of  due 
attestation.  In  Laughton  v.  Atkins,  1  Pick.  535,  the  second  will 
was  adjudged  to  be  null  and  void,  as  having  been  procured  through 
undue  influence  and  fraud ;  and  the  whole  decision  went  upon  the 
ground  that  it  was  never  valid,  and  could  not  be. 

The  first  of  these  questions  has  been  much  discussed,  both  in 


WHETHER    REVOCATION   REVIVES   PREVIOUS    WILL.      371 

Ei) "-land  and  America;  and  it  has  been  often  said  that  the  courts 
of  common   law  and  the  ecclesiastical  courts  in   England  are  at 
variance  upon  it.     See  1  Wms.  on  Executors  (5th  Am.  ed.)  154— 
156,  where  the  authorities  are  cited.     [1  Jarman  on  Wills,  1-15; 
Randolph  &  T.'s  Amer.  note,  Id.,  vol.  ?>,  p.  796,  note  23.]    The  doc- 
trine of  the  ecclesiastical  courts  was  thus  stated  in  1821,  in  Usticke  v. 
Bawden,  2  Add.  Ecc.  116, 125  :  "  The  legal  presumption  is  neither 
adverse  to,  nor  in  favor  of,  the  revival  of  a  former  uncancelled,  upon 
the  cancellation  of  a  later,  revocatory  will.     Having  furnished  this 
principle,  the  law  withdraws  altogether  ;  and  leaves  the  question,  as 
one  of  intention  purely,  and  open  to  a  decision,  either  way,  solely  ac- 
cording to  facts  and  circumstancc^.,■     See  also  Moore  v.  Moore,  1 
Phillim.  406;  Wilson  v.  Wilson,  3  Phillim.  543,  554;  Ilooton  v. 
Head,  3   Phillim.  26;  Kirkcudbright  v.  Kirkcudbright,  1   Hagg. 
Ecc.  325  ;  Welch  v.  Phillips,  1  Moore  P.  C.  299.     In  Powell  on 
Dev.  (ed.  of    L827)  527,  52s.  a  distinction  is  taken   between  the 
effect  of  the  cancellation  of  a  second  will  which  contains  no  express 
clause  revoking  former  wills,  and  of  a  will  which  contains  such  a 
clause;  and  in  respect  to  the  latter  it  is  said  that,  "if  a  prior  will 
be  made,  and  then  a  subsequent  one  expressly  revoking  the  former, 
in  such  case,  although  the  first  will  be  left  entire,  and  the  second 
will  afterwards  cancelled,  yet  the  better  opinion  seems  to  be,  that 
the  former  is  not  thereby  set  up  again/'     Jarman's  note  questions 
the  soundness  of  the  above  doctrine  (p.  529,  n.).     While  this  ap- 
parent  discrepancy  in   the   respective   courts   remained  not   fully 
reconciled,  in  L837,  the  English  Statute  of  Wills  was  passed.  St.  7 
Will.  I  V.  &  1  Vict.  c.  26,  sec.  22  of  whirl,  provided  that  "  no  will 
or  codicil,  or  any  part   thereof,  which  shall  be  in  any  manner  re- 
voked, shall  be  revived  otherwise  than  by  the  re-execution  thereof, 
or  by  a  codicil   executed   in   manner  hereinbefore  required,  and 
showing  an   intention  to  revive  the  same."     Since  the  enactment 
of   this   statute,  the  deci  ions  in  all  the  courts  have  been  uniform, 
that  after  the  execution  of  a  subsequent  will  which  contained  an 
express   revocation,  or  which   by  reason  of  inconsistent  provisions 
amounted   to  an  implied  revocation  of  ;i  former  will,  such  former 
will  would  not  l.e  revived  by  the  cancellation  or  destruction  of  the 
later  one.     Major  \.  Williams,  ::  I  !urt.  Ecc.  132  :  Jamee  v.  <  lohen, 
Curt.  Ecc.  770,  782  ;  Brown  v.  Brown,  ^  El.  A-  Bl.  676;  Dick- 
inson v.  Swatman,  30  L.  J.  (N.  S.)  P.  &   M.  84;  Wood  v.  Wood, 


372  KEVOOATION   AND    REPUBLICATION. 

L.  E.  1  P.  &  D.  309.  In  order  to  have  the  effect  of  revocation, 
it  must  of  course  be  made  to  appear  that  the  later  will  contained 
a  revocatory  clause,  or  provisions  which  were  inconsistent  with  the 
former  will ;  and  the  mere  fact  of  the  execution  of  a  subsequent 
will,  without  evidence  of  its  contents,  has  been  considered  insuffi- 
cient to  amount  to  a  revocation,  ditto  v.  Gilbert,  9  Moore  P.  C. 
131.     See  also  Nelson  v.  McGiffert,  3  Barb.  Ch.  158. 

In  the  United  States,  there  is  a  like  discrepancy  in  the  decisions 
in  different  States,  though  the  clear  preponderance  appears  to  be 
in  favor  of  a  doctrine  substantially  like  that  established  in  the 
ecclesiastical  courts.     This  rule  was  established  in  Connecticut,  in 
1821,,  in  James  v.  Marvin,  3  Conn.  576,  where  it  was  held  that  the 
revocatory  clause  in  the  second  will,  prqprio  vigore,  operated  in- 
stantaneously to  effect  a  revocation,  and  that  the  destruction  of  the* 
second  will  did  not  set  up  the  former  one  ;  and  the  like  rule  was 
declared  to  exist  in  New  York,  by  the  Supreme  Court  of  that 
State,  in  1857,  in  Simmons  v.  Simmons,  26  Barb.  68.    The  question 
was  greatly  considered  in  Maryland,  in  1863,  in  Cohan  v.  Warford, 
20  Md.  357,  391,  and  the  court  declared  that  "  a  clause  in  a  subse- 
quent will,  which  in  terms  revokes  a  previous  will,  is  not  only  an 
expression  of  the  purpose  to  revoke  the  previous  will,  but  an  actual 
consummation  of  it,  and  the  revocation  is  complete  and  conclusive, 
without  regard  to  the  testamentary  provisions  of  the  will  contain- 
ing it."    The  court  further  held  that  the  cancellation  of  a  revoking 
will,  prima  facie,  is  evidence  of  an  intention  to  revive  the  pre- 
vious will,  but  the  presumption  may  be  rebutted  by  evidence  of 
the  attending  circumstances  and  probable  motives  of  the  testator. 
In  Harwell  v.  Lively,  30  Ga.  315,  in  1860,  a  similar  rule  was  laid 
down,  and  maintained  with  great  force  of  reasoning.    The  opinion 
of  the  court  concludes  with  the  following  pertinent  suggestion : 
"  It  must  be  conceded  there  is  much  law  adverse  to  the  doctrine. 
....  Calculated  as  it  is  to  subserve  and  enforce  the  tenor  and 
spirit  of  our  own  legislation,  and  to  give  to  our  people  the  full 
benefit  of  the  two  hundred  years'  experience  of  the  mother  coun- 
try, as  embodied  in  the  late  act,  is  it  not  the  dictate  of  wisdom  to 
begin  in  this  State  where  they  have  ended  in  England  ?    We  think 
so."     See  also  Barksdale  v.  Hopkins,  23  Ga.  332.     The  courts  of 
Mississippi,  in  1836,  and  of  Michigan,  in  1881,  adopted  the  same 
rule.     Bohanon  v.  Walcot,  1  How.  (Miss.)  336 ;  Scott  v.  Fink,  45 


WHETHER   REVOCATION   REVIVES   PREVIOUS   WILL.      373 

Mich.  241.  It  is  to  be  observed,  that  some  of  the  foregoing  de- 
cisions are  put  expressly  on  the  ground  that  the  later  will  con- 
tained an  express  clause  of  revocation.  45  Mich.  246;  20  Md. 
392.  An  examination  of  the  cases  decided  in  Pennsylvania  leads 
us  to  infer  that  a  similar  rule  would  probably  have  been  adopted 
in  that  State,  if  the  question  had  been  directly  presented.  Lawson 
v.  Morrison,  2  Dull.  2sti,  290  ;  Boudinot  v.  Bradford,  2  Yeates  170  ; 
s.  c.  2  Dall.  266 ;  Flintham  v.  Bradford,  10  Penn.  St.  82,  85,  92. 

On  the  other  hand,  in  Taylor  v.  Taylor,  2  Nott  &  McC.  482,  in 
1820,  it  was  held  in  South  Carolina  that  the  earlier  will  revives 
upon  the  cancellation  of  the  later  one ;  and  the  same  rule  prevails 
in  New  Jersey,  as  is  shown  by  Kandall  v.  Beatty,  4  Stew.  (N.  J.) 
643,  and  cases  there  cited. 

In  various  States  of  the  Union,  statutes  have  been  enacted  sub- 
stantially to  the  same  effect  as  the  English  statute  above  cited, 
showing  that  wherever,  so  far  as  our  observation  has  extended,  the 
subject  has  been  dealt  with  by  legislation,  it  has  been  thought  wiser 
and  better  to  provide  that  an  earlier  will  shall  not  be  revived  by 
the  cancellation  of  a  later  one.  There  are,  or  have  been,  such 
statutes  in  New  York,  Ohio,  Indiana,  Missouri,  Kentucky,  Cali- 
fornia, Arkansas,  and  Virginia,  and  probably  in  other  States. 
Concerning  these  statutes  of  New  York,  it  is  said  in  4  Kent  Com. 
532,  that  they  "have  essentially  changed  the  law  on  the  subject 
of  these  constructive  revocations,  and  rescued  it  from  the  hard 
operation  of  those  technical  rules  of  which  we  have  complained, 
and  placed  it  on  juster  and  more  rational  grounds." 

On  the  whole,  the  question  being  an  open  one  in  this  State,  a 
majority  of  the  court  has  come  to  the  conclusion  (hat  the  destruc- 
tion of  the  second  will  in  the  present  case  would  not  have  the 
effect  to  revive  the  first,  in  the  absence  of  evidence  to  show  that 
snch  was  the  intention  of  the   testator.      The  clause  of  revocation 

is  not  necessarily  testamentary  in  its  character.  It  mighl  ae  well 
be  executed  ae  a  separate  instrument.  The  fact  that  it  is  insert. '.1 
in  a  will  does  n<>t  necessarily  .-how  that  the  testator  intended  that 

it  should   he  dependent  on  the  continuance  in   force  ot   all   the  Other 

provisions  by  which  his  property  is  disposed  of.  It  is  more  reason- 
able  and    natural    to  aSSUme  thai  such  revocatory  clause  >hows  em 

piratically  and  conclusively  that   he   has  abandoned   hieformer 

intentions,  and  Substituted  therefor  a  new  disposition  of   his    prop- 


374  REVOCATION   AND   REPUBLICATION. 

ertv,  which  for  the  present,  and  unless  again  modified,  shall  stand 
as  representing  his  wishes  upon  the  subject.  But  when  the  new 
plan  is  in  its  turn  abandoned,  and  such  abandonment  is  shown  by 
a  cancellation  of  the  later  will,  it  by  no  means  follows  that  his 
mind  reverts  to  the  original  scheme.  In  point  of  fact,  we  believe 
that  this  would  comparatively  seldom  be  found  to  be  true.  It  is 
only  by  an  artificial  presumption,  created  originally  for  the  pur- 
pose of  preventing  intestacy,  that  such  a  rule  of  law  has  ever  been 
held.  It  does  not  correctly  represent  the  actual  operation  of  the 
minds  of  testators,  in  the  majority  of  instances.  The  wisdom 
which  has  come  from  experience,  in  England  and  in  this  country, 
seems  to  point  the  other  way.  In  the  absence  of  any  statutory 
provision  to  the  contrary,  we  are  inclined  to  the  opinion  that  such 
intention,  if  proved  to  have  existed  at  the  time  of  cancelling  the 
second  will,  would  give  to  the  act  of  such  cancellation  the  effect 
of  reviving  the  former  will ;  and  that  it  would  be  open  to  prove 
such  intention  by  parol  evidence.  Under  the  statute  of  England, 
and  of  Virginia,  and  perhaps  of  other  States,  such  revival  cannot 
be  proved  in  this  manner.  Major  v.  Williams,  and  Dickinson  v. 
Swatman,  above  cited.  Rudisill  v.  Rodes,  29  Grat.  147.  But 
this  results  from  the  express  provision  of  the  statute. 

In  the  present  case  there  was  no  evidence  tending  to  show  that 
the  testatrix  intended  to  revive  the  first  will ;  unless  the  bare  fact 
that  the  first  will  had  not  been  destroyed  amounted  to  such 
evidence.  Under  the  circumstances  stated  in  the  report,  little 
weight  should  be  given  to  that  fact.  The  will  was  not  in  the  cus- 
tody of  the  testatrix,  and  the  evidence  tended  strongly  to  show 
that  she  supposed  it  to  have  been  destroyed. 

The  question,  therefore,  is  not  very  important,  in  this  case, 
whether  the  subsequent  declarations  of  the  testatrix  were  admis- 
sible in  evidence  for  the  purpose  of  showing  that  she  did  not 
intend,  by  her  cancellation  of  the  second  will,  to  revive  the  first ; 
because,  in  the  absence  of  any  affirmative  evidence  to  prove  the 
existence  of  such  intention,  the  first  will  could  not  be  admitted  to 
probate.  Nevertheless  we  have  considered  the  question,  and  are 
of  opinion  that  such  declarations  were  admissible  for  the  purpose 
of  showing  the  intent  with  which  the  act  was  done.  The  act  itself 
was  consistent  with  an  intention  to  revive,  or  not  to  revive,  the 
earlier  will.     Whether  it  had  the  one  effect,  or  the  other,  de- 


TVHETHEK   REVOCATION   REVIVES   PREVIOUS    WILL.      3?.') 

perilled  upon  what  was  in  the  mind  of  the  testatrix.  It  would  in 
manv  instances  be  more  satisfactory  to  have  some  decisive  declara- 
tion made  at  the  very  time,  and  showing  clearly  the  character  of 
the  act.  Evidence  of  declarations  made  at  other  times  is  to  be 
received  with  caution.  They  may  have  been  made  for  the  very 
purpose  of  misleading  the  hearer  as  to  the  disposition  which  the 
speaker  meant  to  make  of  his  property.  On  the  other  hand,  they 
may  have  been  made  under  such  circumstances  as  to  furnish  an 
entirely  satisfactory  proof  of  his  real  purpose.  It  is  true  that  it 
may  not  be  proper  to  prove  the  direct  act  of  cancellation,  destruc- 
tion, or  revocation  in  this  manner.  But  when  there  is  other 
evidence  of  an  act  of  revocation,  and  when  the  question  of  the 
revival  of  an  earlier  will  depends  upon  the  intention  of  the  tes- 
tator, which  is  to  be  gathered  from  facts  and  circumstances,  his 
declarations,  showing  such  intention,  whether  prior,  contempora- 
neous, or  subsequent,  may  be  proved  in  evidence. 

In  the  great  case  of  Sugden  v.  St.  Leonards.  1  I*.  I).  154,  the 
question  underwent  full  discussion,  in  1876*5  whether  written  and 
oral  declarations  made  by  a  testator,  both  before  and  after  the 
execution  of  his  will,  are,  in  the  event  of  its  loss,  admissible  as 
secondary  evidence  of  its  contents;  and  it  was  decided  in  the 
affirmative.  It  was  admitted  in  the  argument,  at  one  stage  of  the 
discussion,  that  such  subsequent  declaration-  would  be  admissible 
to  rebut  a  presumption  of  revocation  of  the  will;  but,  this  being 
afterwards  questioned,  it  was  declared  and  held,  on  the  greatest 
consideration,  not  only  that  these,  but  also  that  declarations  as  to 
the  contents  <Jf  the  will,  were  admissible.  See  pages  171.  L98, 
200,  214,  215,  219,  220,  225,  ±l~.  228,  240,  241.     The  case  of 

Keen  v.  Keen.  L.  \l.  '■'<  P.  &  I).  !<»."),  is  to  the  same  effect.  See 
also  Gould  v.  Lakes,  6  I*.  I).  1;  Doe  v.  Allen.  12  A.  &  A.  l.M  ; 
LJsticke  v.  Bawden,  '2  Add.  Ecc.  12:1;  Welch  v.  Phillips,  l  Moore 
I'.  <'.  299;  Whitely  v.  King,  L0  Jur.  (N.  S.)  L079;  Re  Johnson's 
Will,  40  Conn.  587;  Lawyer  v.  Smith,  8  Mich.  411;  Patterson  v. 
Bickey,32  Ga.  L56;  1  Jarm.  Wills  (5th  Am.  ed.  bj  Bigelow), 
L30,  133,  L34,  142,  and  uol  The  question  wa&  also  discussed, 
and  manv  cases  were  cited,  in  Collagran  v.  Burn s,  57  Maine  449, 

but   the   court    was    equally    divided    in    opinion.       Many,    though 

Dot   all,  of  the  cases,  which  at   first  Bighl    may  appear  to   hold 

the    contrary,     will     be    found    OH     examination     to    hold     merely 


376  REVOCATION   AND   REPUBLICATION. 

that  the  direct  fact  of  revocation  cannot  be  proved  by  such  dec- 
larations. 

The  result  is,  that,  in  the  opinion  of  a  majority  of  the  court, 
the  will  should  be  disallowed,  and  the  decree  of  the  Probate  Court 

Reversed. 

REPUBLICATION. 

Thus  far  we  nave  considered  the  subjects  of  testamentary  capac- 
ity and  the  execution  and  revocation  of  wills.  There  is  a  further 
topic  which,  while  in  a  sense  distinct,  is  closely  allied  to  that  of 
execution,  namely,  that  of  republication  and  revival  of  wills.  The 
occasion  for  republishing  and  reviving  wills  may  arise  in  various 
ways.  A  will,  for  instance,  may  have  been  duly  executed  to  be- 
gin with,  and  then  have  been  revoked,  either  expressly  or  by  im- 
plication. Here,  unless  it  is  in  some  way  revived  by  some  subse- 
quent act,  it  of  course  counts  for  nothing.  So  the  original  will 
may,  in  the  first  instance,  have  been  improperly  executed.  And 
in  any  case  where,  as  facts  now  stand,  a  will  would  not  take  effect 
if  left  as  it  is,  it  is  necessary,  in  order  to  establish  it  anew,  that  it 
should  be  revived  and  republished.  We  have  already  seen,  in  the 
Chapter  on  Execution,  that  it  is  not  necessary  in  some  jurisdictions 
that  testator,  in  order  to  duly  execute  his  will,  should  "  publish  " 
it,  in  the  sense  of  declaring  it  to  be  his  will.  And  so  also  in  such 
jurisdictions  he  may  revive  it  by  re-execution,  or  by  executing  a 
new  instrument,  duly  referring  to  it,  without  a  re-declaration.  The 
term  "  Republication,"  therefore,  is  not  always  accurate ;  but  it  is 
commonly  used  in  the  sense  of  revival,  by  any  legal  method,  and 
in  that  sense  is  here  employed. 

In  all  cases,  it  is  always  sufficient  to  re-execute  the  will  anew, 
just  as  if  it  had  never  been  executed  at  all.  But  there  is  still 
another  method  of  reviving  it  which  is  of  great  importance, 
namely,  by  due  reference  to  it  in  a  codicil  or  subsequent  will 
which  is  in  itself  duly  executed.  The  execution  of  the  later  in- 
strument also  relates  back  to  and  covers  the  former  will  and 
revives  it.1     Nor  is  it  necessary  that  the  later  instrument  should 

1  Estate  of  Masters,  1  Civ.  Pr.  R.  (N.  Y.)  459;  Van  Cortlandt  v.  Kip,  1  Hill 
(N.  Y.)  590  ;  s.  c.  7  Hill  346  ;  Van  Alstynev.  Van  Alstyne,  28  N.  Y.  375  ;  1 
Williams  on  Executors,  211;  1  Jarman  on  Wills  (Randolph  &  T.'s  Ed.),  Oh.  VI., 
section  iv.,  and  Ch.  VIII. ;  11  Moore  P.  C.  426  ;  Brown  v.  Clark,  77  N.  Y.  369; 
Murfield's  Estate  (la.),  38  N.  W.  Rep.  170;  McCurdy  v.Weall,  7  Atl.  Rep.  566. 


[REPUBLICATION   ONLY   BY   NEW   EXECUTION.  377 

set  forth  in  express  terms  the  testator's  intention  to  republish  the 
former.  Any  reference  which  makes  such  an  intention  obvious, 
will  suffice.  It  follows  as  a  corollary  from  these  propositions, 
that  if  a  former  will  is  thus  referred  to  in  a  manner  sufficient  to 
revive  it,  if  in  need  of  reviving,  it  is  sufficient,  in  proving  both 
instruments,  to  prove  the  due  execution  of  the  later  one  only,  even 
though  in  fact  the  former  was  in  fact  duly  executed.  For,  if  the 
due  execution  of  the  later  suffices  for  both,  it  is  immaterial  whether 
the  earlier  was  duly  executed  or  not.1 

Illustrations. 

(a).  A  codicil  referred  merely  to  "my  will."  Held,  citing 
many  authorities,  that  this  republished  the  will  itself,  and  that  on 
proceedings  for  probate  of  both  instruments,  it  was  necessary  to 
prove  the  codicil  only.2 

(b).  A  codicil  merely  referred  to  the  will  by  date.  This  sufficed 
to  republish  the  will.3 

(c).  A  second  codicil  referred  to  the  first  codicil  merely  by  be- 
ing itself  designated  as  "  another  codicil."  It  thereby  republished 
the  first  codicil.4 

REPUBLICATION  ONLY  BY  NEW  EXECUTION. 
Barker  vs.  Bell  et  al. 

Alabama  Supreme  Court,  1871. 
(46  Ala.  216.) 
Appeal  from  Probate  Court. 

Peters,  J.— This  is  a  proceeding  on  the  contest  of  a  will  before 
its  probate,  under  our  statute.  There  was  a  jury  trial  in  the  court 
below,  and  a  verdict  in  favor  of  the  will  offered  for  probate,  and 

a  judgment  of  the  court  allowing  the  probate  of  the  instrument 
offered,  according  to  the  vcnlict. 

The  evidence  tends  to  show  that  there  were  two  wills  made  by 
the  decedent,  Wm.   M.   Bell.    The  one  was   made  in  January, 


1  Bee  Index,  "  Incorporation." 

'  Matter  <<f  Nesbit,  •">  Dem.  287. 

■Payne  v.  Payne,  18  Oal.  391.    See  Storm's  Will,  8  Real  (N.  V.)  827. 

4  Ingoldhy  v.  Iugoldby,  4  No.  Gafl.  408. 


378  REVOCATION   AND    REPUBLICATION. 

1868,  and  the  other  in  May  or  June,  1868.     This  latter  will  was 
not  produced  on  the  trial,  and  there  was  no  written  evidence  to 
show  that  it  had  been  revoked  or  canceled.     The  testamentary 
paper  of  January,  1808,  was  the  will  offered  for  probate,  and  the 
one  that  was  established  by  the  decree  of  the  court.     It  disposes 
of  the  real  and  personal  estate  of  the  testator.     The  issue  covered 
all  the  ground  of  contest  that  could  be  made  on  such  an  instru- 
ment.    The  evidence  tends  to  establish  the  allegation  that  it  had 
been  regularly  made  and  attested,  and  declared  to  be  the  will  of 
the  party  making  it,  to  wit,  said  Wm.  M.  Bell,  as  required  by  the 
Code.     But  after  the  death  of  Bell,  the  alleged  testator,  it  was 
found  in  possession  of  his  widow,  with  his  name  torn  off,  and  the 
names  of  the  attesting  witnesses,  of  whom  there  were  three,  re- 
mained legible.     There   was  proof  going  strongly  to  show  that 
these  obliterations  had  been  made  by  the  testator  himself,  while 
the  will  was  in  his  possession  ;  that  he  had  handed  it  to  his  wife, 
or  she  had  rotten  it  from  his  pocket,  and  that  it  was  so  obliterated 
when  she  obtained  it,  and  that  he  had  then  declared  that  the  ob- 
literation was  his  work,  and  he  intended  it  as  a  cancellation  of  the 
will.     There  was  no  testimony  that  this  will  had  been  canceled  or 
torn  by  any  other  person.     There  was  proof,  also,  that  the  testator 
had  spoken  of  this  paper,  after  the  making  and  publication  of  the 
subsequent  will  of  May  or  June,  1868,  as  "his  will,"  and  declar- 
ing that  he  had  destroyed  the  will  of  May  or  June,  186S.1     This 
was  in  April,  1870,  just  before  decedent's  death. 

On  this  evidence  the  court  gave  several  charges  to  the  jury, 
which  were  excepted  to  by  the  contestants,  and  refused  to  give 
several  others  which  were  asked  by  the  contestants,  and  the  refus- 
als were  each  made  the  basis  of  an  exception.  It  is  not  necessary 
to  notice  the  exceptions  arising  on  the  charges  given,  as  like  ques- 
tions arise  on  the  charges  refused.  One  of  these  charges  is  recited 
in  the  record  in  the  following  terms  : 

"  The  contestants  asked  the  court  to  charge  the  jury  in  writing, 
that  the  testator  could  not  republish  the  will  propounded  by  parol 
declarations  alone." 

This  charge  should  have  been  given.     To  refuse  it  was  error. 
The  Code  is  intended  to  contain  all  the  statute  law  of  this  State 


1  See  Index,  "  Declarations. 


REPUBLICATION    ONLY    BY    NEW    EXECUTION.  379 

of  "  a  public  nature,  designed  to  operate  upon  all  the  people  of  the 
State  up  to  the  date  of  its  adoption,  unless  otherwise  directed  in 
the  Code,"— Code,  sec.  10.  This  law  is  not  merely  cumulative  of 
the  common  law,  and  made  to  perfect  the  deficiencies  of  that  sys- 
tem, lmt  it  is  designed  to  create  a  new  and  independent  system, 
applicable  to  our  own  institutions  and  government,  Rev.  Code 
sec  10.  In  such  case,  where  a  statute  disposes  of  the  whole  sub- 
ject of  legislation,  it  is  the  only  law.  Otherwise,  we  shall  have 
two  systems,  where  one  was  intended  to  operate,  and  the  statute 
becomes  the  law  only  so  far  as  a  party  may  choose  to  follow  it. 
Besides,  the  mere  fact  that  a  statute  is  made,  shows  that  so  far  as 
it  goes,  the  legislature  intended  to  displace  the  old  rule  by  a  new 
one.  On  some  questions  the  common  law  conflicts  more  or  less 
with  constitutional  law,  and  is  necessarily  displaced  and  repealed 
by  it.  And  on  others  it  has,  by  lapse  of  ages,  and  mistakes 
inevitably  attendant  on  all  human  affairs,  become  uncertain 
and  difficult  to  reconcile  with  the  principles  of  justice.  Hence, 
the  legislature  intervenes  to  remove  such  difficulties,  uncertainties, 
and  mistakes,  by  a  new  law.  This  new  law,  to  the  extent  that  it 
goes,  necessarily  takes  the  place  of  all  others.  For  it  would  be 
illogical  to  contend  that  the  old  rule  must  stand,  as  well  as  the  new- 
one,  because  this  would  not  remedy  the  evil  sought  to  be  removed 
and  avoided. 

Judged  upon  these  principles,  the  statute  law  found  in  the  Code. 
and  BUch  others  as  may  have;  been  since  enacted  on  the  subject  ot 
wills,  in  this  Stat.-,  include  the  whole  law  upon  the  matingof  wills, 
and  their  revocation,  and  the  making  of  other  wills  in  the  place  of 
those  revoked.  Rev.  Code,  sec.  420,  Chap.  EL,  adJmSm.  A  will 
made  in  conformity  with  the  requirements  of  this  law,  without 
fraud  or  undue  influence,  is  valid  as  a  testamentary  disposition  of 
the  maker's  estate.  Bu1  if  it  is  not  so  made,  it  can  have  no  force 
;i-  ;l   will.      I'nder   this  statute,  the   revocation    by   cancellation   or 

obliteration,  by  the  testator  himself ,  destroys  the  instrument.  From 
the  date  of  the  revocation,  the  will  revoked  ceases  to  be  a  testa- 
mentary disposition  of  the  maker's  estate.  Such  revoked  will  is 
nothing.  It  can  have  no  effeel  a-  a  will.  Ami  if  the  party  who 
made  it  desiree  to  make  a  testamentary  disposition  oi  Ins  estate,  he 
mu-t  make  a  new  will,  iii  the  ,,,;, nner  required  by  the  statute. 
I'.ut  in  doing  this,  he  may  ase  the  same  form  of  words,  without  varia- 


3S0  REVOCATION   AND   REPUBLICATION. 

tions  or  with  variations,  as  often  as  lie  pleases,  and  the  same  written  or 
printed  document  that  was  used  at  first,  but  the  process  of  making 
the  will  must  be  the  same  each  time ;  that  is,  it  must  be  done  as 
prescribed  by  the  statute.     By  our  law,  there  can  be  no  republica- 
tion of  a  will  that  has  been  revoked  by  tearing  off  the  names  of 
the  maker  and  the  attesting  witnesses,  unless  the  will  is  re-signed 
and  re-attested,  as  required  by  the  statute.     The  signing  of  the  will 
and  the  attestation  of  tbis  signature  are  essential  formalities  that 
cannot    be    dispensed   with.     Kev.  Code,  sees.    1910,    1930-31  ; 
Powell's  Distr.  v.  Powell's  Legatees,  30  Ala.  697,  705 ;  Eiley  v. 
Riley,  36  Ala.  496 ;  1  Kedf.  Wills,  p.  191,  bottom,  sees.  206-7. 
The  charge  asked,  as  above  set  out,  was  confined  to  the  instrument 
offered  for  probate  in  this  case.     The  proof  in  this  instance  is  not 
sufficient  to  establish  the  republication  of  such  a  will.     Where  a 
testator  has  made  two  wills,  and  wishes  to  destroy  the  one  last  made, 
and  revive  the  one  first  made,  both  of  which  have  been  duly  exe- 
cuted, he  may  do  so  by  the  cancellation  or  destruction  of  the  last 
made  will,  and  the  due  republication  of  the  previous  will.1     But 
this  due  republication  of  the  previous  will  cannot  be  made  of  a 
will  mutilated  and  canceled  by  the  testator  himself,  without  a  re- 
making of  the  same,  as  required  by  the  statute.     Otherwise,  a 
paper  without  the  signature  of  the  testator,  and  without  attesting 
witnesses,    might  become  a  will.      This,  except  in  certain  cases 
(and  this  is  not  one  of  the  excepted  cases),  the  law  forbids.     Rev. 
Code,  sees.  1932-4,  1936;  Jackson  v.  Holloway,  7  Johns.  394; 
Jackson  v.  Rodgers  et  al.,  9  Johns.  312  ;  1  Redf.  Wills,  p.  354, 
bottom,  sees.  373-4 ;  James  v.  Marvin,  3  Conn.  576  ;  10  Bac.  Abr. ; 
Bouv.  p.  505.     A  republished  will  is  a  new  will,  and  it  must  have 
all  its  parts  complete.     1  Williams  on  Ex'rs,  113,  121,  margin. 
This  instrument  cannot  be  made  a  new  will  without  the  testator's 
signature,  and  the  signatures  of  the  proper  number  of  attesting 
witnesses.     These  requisites  it  does  not  possess.     Rev.  Code,  sec. 
1930  ;  1  Redf.  Wills,  347,  bottom,  et  seq. 

In  all  matters  in  relation  to  the  evidence  and  mode  of  proceed- 
ing in  the  court  of  probate  on  the  contest  of  a  will,  where  there  is 
no  special  exception,  the  court  must  proceed  and  be  governed  by 
the  same  rules  and  regulations  as  courts  of  common  law.     Rev. 


See  Index,  "Republication.' 


REPUBLICATION    ONLY   BY   NEW    EXECUTION.  381 

Code,  sec.  ]962.  In  such  a  contest,  the  legatees  are  competent 
witnesses '  for  the  proponent,  or  for  the  contestant.  Rev.  Code, 
sec.  2704 ;  Painph.  Acts  1866-67,  p.  335,  No.  403.  The  court 
did  not  err  in  permitting  one  of  the  legatees  to  testify  in  favor  of 
the  validity  of  the  will. 

The  conduct  of  the  trial  is  under  the  sound  discretion  of  the  court. 
The  court  may  therefore  allow  a  witness  to  be  called  back  for  re-ex- 
amination, but  cannot  compel  either  party  to  call  back  his  witness, 
unless  he  choose  to  do  so.  In  case  a  witness  is  so  called  back  after 
being  dismissed  by  the  party  who  summoned  him,  be  becomes  the 
witness  of  the  party  calling  him  back  against  the  objection  of  the 
other  party  ;  and  such  witness  cannot  be  impeached  by  the  party 
so  calling  him  back.  In  this  view  of  the  law  the  contestants  were 
not  injured,  as  the  testimony  strengthened  their  case. 

The  other  exceptions  are  such  as  are  not  likely  again  to  arise  on 
a  new  trial.     I  therefore  omit  their  consideration. 

The  judgment  of  the  court  below  is  reversed,  and  as  the  parties 
are  entitled  to  a  trial  by  jury  (Rev.  Code,  sec.  1956),  the  cause  is 
remanded  and  a  new  trial  is  ordered. 


1  As  to  the  competency  of  witnesses,  see  the  laws  of  the  respective  States. 
See  also  Index,  "  Witnesses." 


CHAPTER  V. 

FORM,  NATURE,  AND  SCOPE  OF  WILLS. 

I. — The  form  of  the  instrument. 
II. — Conditional  wills. 

III. — Contracts  concerning  testamentary  dispositions. 
IV. — Joint,  simultaneous,  double,  alternative,  and  dupli- 
cate WILLS. 
V. — Incorporation  by  reference. 
VI. — Illegal  provisions  and  incapable  beneficiaries. 
VII. — Nuncupative  wills. 
VIII. — Conflict  of  laws. 
IX. — Miscellaneous. 

Thus  far  we  have  considered  the  history  of  wills,  the  testa- 
mentary capacity  of  testators,  and  the  formalities  now  required 
to  effect  due  execution,  revocation,  and  republication.  In  the 
present  chapter  we  are  to  take  up  the  form  in  which  the  testa- 
mentary instrument  itself  may  be  cast,  and  its  scope,  nature,  and 
characteristics. 

I.  THE  FORM  OF  THE  INSTRUMENT. 

(a).  The  materials  to  be  used. — The  statutes  of  wills  require 
wills  (except  those  known  as  nuncupative  wills,  which  will 
be  considered  hereafter)  to  be  in  writing.  But  they  do  not  pre- 
scribe the  particular  material  with  which  the  writing  shall  be 
effected,  nor  the  material  of  which  the  instrument  itself  shall  con- 
sist. As  to  the  latter,  paper  or  parchment  is  of  course  the  usual 
and  appropriate  substance  employed,  but  the  modern  test  is  the 
adaptability  of  the  material  to  receive  and  retain  a  legible  and  per- 
manent impression,  and  to  furnish  a  medium  suitable  for  the  uses 
called  for  in  connection  with  a  testamentary  instrument.  Thus,  it 
has  been  held  in  Pennsylvania  that  a  will  written  on  a  slate  can- 
not  be  probated,  on  the  ground  that  it  is  too  susceptible  to  erasures 
and  substitution  of  provisions  to  render  it  worthy  of  serious  con- 
sideration.1 It  is  always  true,  of  course,  that  the  use  of  unusual 
. — . — — — — .* 

1  Reed  v.  Woodward,  11  Phila.  541. 
(3  82) 


THE  FORM   OF  THE   INSTRUMENT.  383 

or  inappropriate  materials  may  raise  a  prima  facie  presumption 
that  the  instrument  so  executed  could  not  have  been  seriously 
intended  by  testator  as  a  solemn  will.  But  in  such  cases,  where 
peculiar  circumstances  are  proved  showing  that  testator  employed 
the  best  materials  he  could  obtain,  and  could  not  risk  delay,  it  is 
believed  that  all  reasonable  leeway  would  generally  be  allowed,  in 
order  to  sustain  a  will  in  other  respects  duly  executed.1  As  to  the 
materials  with  which  the  will  may  be  written,  the  usual  and  proper 
method  is  of  course  to  employ  pen  and  ink.  But  a  printed  or  en- 
graved form  answers,  though  the  statute  requires  "  writing."  For 
printing  is  writing.3  And  so  a  will  may  be  valid  though  wholly 
written  and  signed  in  lead  pencil/ 

(b).  The  language  employed— &  valid  will  may  be  written  in 
any  language  understood  by  testator.6  Thus,  in  the  case  of  a  will 
written  in  French,  by  an  American  residing  in  France,  a  certified 
copy  of  which,  with  a  translation,  was  admitted  to  probate  in  New 
York,  the  court  say : 

"Objection  was  made  that  the  English  copy  of  the  will  con- 
tained in  the  record  was  no  part  of  the  probate.  "We  think  it  was. 
It  appears  in  2  Redfield  on  Wills  (2d  ed.),  p.  45,  that  '  It  is  requi- 
site, where  the  will  is  in  a  foreign  language,  that  the  probate  should 
contain  a  translation  of  the  same  in  English,'  and  such  plainly 
must  be  the  law.  Suppose  a  will  be  executed  in  Latin,  Greek,  or 
Arabic,  with  the  formalities  required  by  our  statute,  what  is  to  be 
done  with  it  when  it  is  presented  for  probate  (  Its  execution  must 
'p.-  proved  in  English.  The  precise  language  in  which  the  will  is 
written  is  of  little  significance;  whether  it  be  in  our  language  or 
another  is  of  little  importance.     The  will  of  the  testator  is  to  he 


i 


TiV-  will  may  lie  written  en  separate  sheets,  fastened  together  only  with 
a  pin.  In  Goods  of  Braddock,  1  I'.  D.  138.  When  they  are  found  fastened 
together,  the  presumption  is  thai  it  was  done  by  testator.  Rees  v.  Rees,  L.  R.  '■'< 
V.  &  I). 

I,,  Goods  ef  ^dams,  I..  R.  2  I".  &  D.  867. 

Temple  v.  Mead,  t  Vt.  .".:::.;  Henshaw  v.  Fester.  10  Pick,  812 

1  Myers  v.  Vanderhelt,  84  Penn.  St.  ■'.m  ;  G la  of  Dyer,  1  ffaeg  219;  thou  ii 

tii.'  use  ef  m  pencil  i-  -t  circumstance  to  be  considered  if  testator's  infant  to 
makes  formal  "-ill  ;    In  question.     Rymi     s>  Clarkson,  I  Phillim  88  I  B 

If  the  writing  i-  blind  or  obscure,  the  court  may  send  it  to  :i  mautt  r,  or  take 
other  steps  to  have  it  deciphered      Mastei    v.  Masters,  1  P.  Wins   181(4 


584  FORM,   NATURE,    AND   SCOPE   OF   WILLS. 

ascertained  from  the  meaning  which  he  has  expressed,  in  whatever 
language ;  and  that  meaning,  put  into  proper  English,  must,  in  a 
court  required  to  use  the  English  language,  be  taken  as  the  testa- 
tor's will  and  placed  upon  record.  There  can  be  no  necessity  for 
recording  it  in  the  foreign  language  ;  and  yet  the  practice  of  re- 
cording in  both  languages,  where  that  can  be  done,  is  quite  proper. 
It  was  the  duty  of  the  surrogate,  in  this  case,  to  ascertain  what  the 
will  of  the  testator,  written  in  a  foreign  tongue,  was ;  and  the  trans- 
lation which  he  has  recorded  must  be  treated  as  part  of  his  decree, 
unassailable  collaterally,  like  the  rest  of  it." ' 

The  important  question  in  such  cases  often  is  whether  the  tes- 
tator understood  the  provisions  of  the  will.  As  where  the  will  is 
in  English,  and  the  testator  did  not  understand  that  language,  the 
mere  fact  that  he  executed  it  does  not  raise  the  usual  prima  facie 
presumption  that  he  knew  its  contents.2 

(c).  Passing  now  from  the  questions  arising  out  of  the  use  of  a  for- 
eign tongue,  to  the  form  of  instrument  that  may  be  employed,  the 
first  principle  is  that  any  phraseology  and  any  form  will  answer, 
if  only  the  necessary  intent  is  shown,  and  testator  expresses  his 
purposes  so  that  they  are  capable  of  being  understood,  and  executes 
the  instrument  according  to  the  requirements  of  the  controlling 

statute  of  wills. 

The  test  of  whether  a  given  instrument  unusual  or  extraor- 
dinary in  form  is  in  fact  a  will,  is  the  intention  of  the  testa- 
tor.3 It  is  sometimes  said  that  in  order  to  make  a  will  the 
testator  must  know  that  he  is  doing  so.4  This  is  of  course  true  in 
those  jurisdictions  where  the  testator  is  required  to  "declare"  to 
the  witnesses  that  the  instrument  is  his  will.  But  in  other  juris- 
dictions the  true  test  is  not  testator's  realization  that  the  instru- 
ment is  a  will,  but  'his  intention  to  create  a  revocable  disposition 
of  his  property  to  accrue  and  take  effect  only  upon  Ms  death  ; b 
if  he  intends  this,  then  the  law  calls  the  instrument  a  will,  whether 

1  Caulfield  v.  Sullivan,  85  N.  Y.  153  (161). 

5  See  Miltenberger  v.  Miltenberger,  78  Mo.  27.  For  the  usual  presumption 
of  knowledge,  arising  from  the  fact  of  execution,  Robinson  v.  Brewster,  30 
N.  E.  Rep.  (111.)  683. 

3  Sharp  v.  Hall,  86  Ala.  110. 

*  Lyles  v.  Lyles,  2  Nott  &  McC.  (S.  C.)  53L 

5  Habergham  v.  Vincent,  2  Ves.  Jr.  231. 


THE   FORM   OF  THE  INSTRUMENT.  385 

he  knew  it  by  that  name  or  not ;  his  lack  of  acquaintance  with  the 
proper  legal  name  is  of  no  consequence.  The  testator  must  have 
the  animus  testandi.  which  is  defined  in  Sheph.  Touchstone,  204 
(referred  to  in  Sewell  v.  Slingluff,  57  Md.  537,  547),  as  the  inten- 
tion to  dispose  of  property  in  the  event  of  death. 

It  will  be  noticed  that  in  jurisdictions  where  the  statutory  re- 
quirements concerning  execution  are  greatly  detailed,  there  is 
much  less  opportunity  for  discussion  concerning  the  character  of 
an  instrument  offered  for  probate.  But  in  none  of  them  is  the 
mere  form  of  the  instrument  in  which  testator's  expressions  of  in- 
tention are  cast  controlling. 


&" 


Illustrations. 

(a).  Will  in  form  of  a  letter.1 

(b).  Will  in  form  of  an  assignment.3 

(c).  Will  contained  in  the  same  instrument  with  a  power  of 
attorney.3 

(d).  Will  constituting  one  portion  of  a  contract.4 

(e).  Will  consisting  solely  of  the  expression  of  a  wish.6  As 
when  the  entire  body  of.  the  will,  preceding  the  signatures, 
was: 

"  I  wish  Mym  Sister,  Louisa  Cock,  of  104,  York  Road,  Lam- 
beth, to  have  my  Sobering  [Charing]  Cross  bank-book,  for  her 
own  use." " 

(f).  Will  merely  naming  executor  and  making  no  disposition 
of  property.' 

The  foregoing  wills  were  all  sustained,  as  representing  a  testa- 
mentary  Intent. 


1  Estate  of  Knox,  181  Penn.  St.  220,  .-rivm  ante,  p.  217;    Barney  v.   Bays, 
29  Pac.  i:<  p.  282  ;  Cowley  v.  Enapp,  42  N.  .1.  L.  297. 

Robinson  v.  Brewster  I  III.  i,  80  N.  E.  Rep.  888;  Doe  dem.  Cross  v.  Cross, 
H  Q.  I'..  711. 

Doe  dem.  Cross  v.  Cross,  8  Q.  B.  714;  Rose  v.  Quick,  BO  Penn.  Bt.  226. 

1  Reed  v.  Bazleton  (Kan.),  15  Pac.  Rep.  177. 

1  Matter  of  Wood.  80  Cal.  75. 

•Cock  \.  Cooke,  L.  R.  i  P.  &  l>.  241. 

■  Barberv.  Barber,  17  Hun  (N.  5f.)72;  I  Wms  on  Exrs,  227. 

» For  farther  illustrations  of  valid  Informal  wills,  duly  executed  under  the 

25 


386  FORM,   NATURE,   AND   SCOPE   OF   WILLS. 

(g).  Rev.  Edward  O'Comiell  wrote  a  letter,  dated  Dec.  8th, 
1874,  beginning  "  My  dear  Christina, — this  is  my  last  will  and 
letter  to  you,"  and  stating  how  his  property  should  be  divided. 
Among  other  phrases  indicating  testamentary  intent,  he  said,  "  I 
leave  my  plate  and  the  family  plate  to  Mrs.  Towers,"  etc.  The 
letter  closed,  "your  affectionate  brother,  Edward  O'Connell." 
Held,  to  have  been  intended  for  a  will,  and  to  be  void  for  lack  of 
due  execution.1 

(A).  II.  F.  Wood,  the  testator,  duly  executed  in  conformity  with 
the  California  statute,  the  following  instrument:  "I  wish  five 
thousand  dollars  to  go  to  John  C.  Cole  in  the  event  of  my  dying 
intestate,  and  the  balance  of  my  property  to  be  held  by  Robert  C. 
Beatie  to  be  disposed  of  by  him  as  his  judgment  may  dictate. 

H.  F.  Wood. 

San  Francisco,  Cal.,  February  5th,  1863. 

Witness :  S.  H.  Seymour,  Win.  H.  Ladd. 
Warrensville,  Lycoming  Co.,  Penn." 

This  was  held  to  be  a  good  will.2 

(i).  A  mere  memorandum  direction,  "  at  my  death  my  estate  or 
my  executor  to  pay  to  July  Ann  Cover  the  sum  of  three  thousand 
dollars,"  signed,  sealed,  and  witnessed,  is  not  an  agreement.  It  is 
a  will,  and  void  if  not  duly  executed  as  such.3 

(J).  An  instrument  beginning,  "  To  all  people  to  whom  these 
presents  shall  come,"  and  in  form  a  deed  of  gift  in  consideration 
of  love  and  affection,  and  duly  executed  under  the  statute  of  wills, 
was  held,  in  view  both  of  its  terms  and  of  extrinsic  evidence  show- 
ing intention,  to  be  a  will.4 

(k).  Where,  after  testatrix  had  duly  executed  a  will  she  executed 

local  law,  compare  Mosser  v.  Mosser,  32  Ala.  551;  Rue  High's  Appeal,  2 
Dougl.  (Mich.)  515;  Habergham  v.  Vincent,  2  Ves.  Jr.  204  (231);  Passmore  v. 
Passmore,  1  Phillim.  218;  Masterman  v.  Maberly,  2  Hagg.  235  (248);  Goods  of 
Colyer,  14  P.  D.  48;  where  the  form  of  the  will  is  peculiar,  so  that  its  testa- 
mentary character  appears  from  its  own  face  doubtful,  extrinsic  evidence  is 
admissible  to  show  its  true  character :  Jones  v.  Nicholay,  2  Roberts.  388; 
Thorncroft  v.  Lashmar,  2  Sw.  &  Tr.  479;  Patterson  v.  English,  71  Penn.  St. 
454. 

1  Towers  v.  Hogan,  23  L.  R.  (Ir.)  53.  2  Matter  of  Wood,  36  Cal.  75. 

1  Corver  v.  Stem  (Md.),  10  Atl.  Rep.  231.        *  In  Goods  of  Slinn,  15  P.  D.  156. 


WILL   IN   ENGLISH. — FOREIGN  TESTATOR.  387 

a  paper  headed  "  This  is  not  meant  as  a  legal  Will,  bat  as  Guide," 
the  latter  cannot  be  admitted  to  probate  as  a  will.1 

(/).  An  uncle  and  nephew  formed  a  partnership  as  physicians. 
The  articles  of  copartnership  contained  the  following  provision, 
namely,  that  in  case  of  the  uncle's  death,  all  his  property,  personal 
and  otherwise,  which  he  held  in  partnership  at  the  time  of  his 
death,  should  go  to  the  nephew.  Held  that  the  provision  was  tes- 
tamentary, and,  not  being  duly  executed  as  a  will,  was  void.2 

Selected  cases  further  illustrating  unusual  forms  of  wills  may  be 
found  post. 

WILL  IN  ENGLISH.— FOREIGN   TESTATOR. 
In  re  Walter's  Will. 

Wisconsin  Supreme  Court,  1885. 
(The  Reporter,  Vol.  XXI.  95.) 

Appeal  from  Sheboygan  County. 

Application  for  probate  of  a  paper  purporting  to  be  the  last  will 
of  Minna  Walter,  deceased,  written  in  English.  She  was  a  Ger- 
man and  did  not  understand  the  English  language.  The  paper 
was  drawn  in  English  at  her  request,  and  was  interpreted  to  her. 
The  application  was  granted,  and  this  appeal  was  taken  from  the 
decree  of  probate. 

Lyon,  J. — The  question  of  law  presented  by  this  appeal  is: 
Should  an  instrument  executed  with  all  the  formalities  which  the 
law  makes  essential  to  a  valid  execution  of  a  will,  which  purports 
to  be  the  last  will  and  testament  of  the  deceased  person  so  exe- 
cuting it,  and  which  expressed  his  will  and  intentions,  be  denied 
probate  for  the  sole  reason  that  such  person  did  not  understand  the 
language  in  which  the  instrument  was  written  ?  This  is  an  inter- 
esting, and,  perhaps,  an  important  question.  It  has  not  heretofore 
been  raised  in  this  court  to  our  knowledge,  and  the  industry  oi 
counsel  has  failed  to  find  a  direct  adjudication  elsewhere.  How- 
ever, in    Redfield  on  Wills,  to  the  statement   in   the  text  that  "  it 

Seems  to  be  well  settled  that  the  testator  may  put  hie  will  in  any 
language  he  may  choose,"  there  is  a  note  in  which  the  author  says: 
"  We  doubt  it    the  common  law  will  allow  of   a  written  will    being 

expressed  in  a  language  not   understood  by  the  testator.     That 

1  Ferguflon-Davie  v   Ferguson  Davie,  i">  P.  l>.  109. 
'  McKinnou  v.  M<  Kinnon,  Hi  Fed    Rep.  718. 


388  FOKM,   NATURE,   AND   SCOPE   OF   WILLS. 

would  seem  indispensable  to  any  understanding  execution  of  the 
instrument."  Vol  1,  page  166  (4th  ed.),  note  8.  No  case  or  au- 
thority is  cited  to  support  the  opinion  intimated  in  the  last  extract. 
The  reason  given  for  this  opinion  is,  in  effect,  that  a  person  cannot 
have  an  understanding  of  the  contents  of  an  instrument  unless  it 
be  written  in  a  language  he  knows.  True,  he  may  not  get  such 
understanding  by  reading  the  instrument  himself,  but  there  are 
other  methods  by  which  he  can  be  accurately  informed  thereof, 
although  he  may  not  be  able  to  read  understaudingly  a  word  of  the 
instrument.  A  vast  amount  of  accurate  knowledge  is  alone  im- 
parted to  the  mass  of  mankind  by  means  of  translations  from  lan- 
guages understood  by  but  few.  Such  is  the  foundation  of  our  be- 
lief in  very  many  most  important  accepted  truths  in  theology, 
science,  and  history.  Important  writings  are  frequently  signed 
without  perusal,  the  signer  relying  upon  the  statement  of  another, 
who  knows  what  the  instrument  contains,  as  to  its  contents.  If 
the  information  states  such  contents  truly,  the  signer  knows  just 
what  he  has  signed.  Were  an  issue  made  up  as  to  whether  the 
signer  of  a  written  instrument  knew  its  contents  when  he  signed 
it,  and  the  proof  should  show  that  he  never  read  it,  but  was  accu- 
rately informed  of  its  contents  orally,  before  he  signed  it,  by  a 
person  who  had  read  it,  the  issue  would  necessarily  be  found  in 
the  affirmative  ;  that  is,  that  the  signer  knew  the  contents  of  the 
instrument.  There  can  be  no  doubt,  we  think,  that  a  person  who 
signs  an  obligation  or  promise,  with  knowledge  of  its  contents, 
imparted  to  him  by  parol,  is  liable  thereon,  although  it  may  be 
written  in  a  language  he  does  not  understand.  The  question  is 
not  by  what  means  or  instrumentalities  the  signer  was  informed  of 
the  contents  of  the  instrument,  but  did  he  know  its  contents  when 
he  signed  it  ?  No  good  reason  is  perceived  why  this  is  not  also 
true  of  wills.  Of  course  it  is  essential  to  a  valid  will  that  the  testator 
should  have  had  an  intelligent  understanding  and  comprehension 
of  its  contents  when  he  executed  it.  The  formalities  required  by 
law  in  the  execution  of  wills  are  prescribed  for  the  purpose  (among 
others)  of  preserving  satisfactory  evidence  that  the  testator  in  each 
case  had  such  understanding  of  the  contents  of  his  will.  But  the 
law  does  not  require  that  he  shall  read  his  will  before  execution,  or 
be  able  to  read  it,  as  a  condition  as  to  its  validity.  If  such  were 
the  law,  the  blind,  or  those  persons  who  from  illiteracy  or  other 


WILL   IN   ENGLISH. — FOREIGN   TESTATOR.  389 

cause  are  unable  to  read,  could  never  make  a  valid  written  testa- 
ment.    The  same  would  be  true  of  many  persons  who  may  desire 
to  execute  a  written  will  when  in  extremis,  and  who  are  otherwise 
competent  to  do  so.     It  has  lung  been  held  that  persons  thus  cir- 
cumstanced may  execute  valid  written  wills.     And  if  the  will  of 
any  such  person  is  drawn  in  accordance  with  his  instructions,  al- 
though not  read  over  to  him,  it  seems  now  to  be  settled  that,  if 
otherwise  sufficient,  it  is  a  valid  will.     1  Redfield  on  Wills,  p.  57, 
c.  3,  sec.  6,  §  5.     We  perceive  no  substantial  difference  in  principle 
between  the  cases  above  referred  to  and  one  in  which  a  will  is  drawn 
up  in  a  language  which  the  testator  does  not  understand.     In  cases 
belonging  t<>  either  class  the  court  should  require  satisfactory  proof 
that  the  testator  was  correctly  informed  of  the  contents  of  the  in- 
strument he  was  about  to  execute.     [Goerke'sWill  (Wis.),  50  N. 
W.  Rep.  345.]    Such  proof  was  made  in  the  present  case,  and  in  ad- 
dition thereto  it  was  proved  that  the  instrument  was  drawn  in  strict 
compliance  with  the  instructions  of  the  testatrix  in  that  behalf. 
In  view  of  the  well-known  fact  that  quite  a  large  percentage  of 
the  people  of  this  State  do  not  understand  the  English  language, 
and  of  the  probability  that  many  wills  of  such  people,  written  in 
English,  have  been  admitted  to  probate,  we  should  adopt  the  rule 
here  'suggested,  even  though  the  argument  against  it  were  much 
stronger  than  it  is.     Otherwise  great  mischief  might  be  done  by 
defeating  the  real  will  of  the  testators,  carefully  expressed,  and 
duly  verified  in  the  manner  prescribed  by  statute,  and  by  unsettling 
estates  supposed   to  be  settled,  and  divesting  rights  of  property 
believed  to  he  fullv  vested.     If  the  same  circumstances  had  ex- 
isted  generally  in  this  country  when  Judge  Redfield  wrote  the  in- 
timation   above   mentioned,    we   greatly   doubt    whether    he   would 
have  thought  that  the  rule  there  suggested  (even  conceding  it  to  be 

a  rule  of  the  common  law)  was  at  all  applicable  to  the  condition 
and  circumstances  of  our  people.     <  >ur  conclusion  is  that,  because 

the  instrument  in  question  was  freely  executed    by  the  testatrix    in 
due  form  of   law,  with  full  and  accurate  knowledge  of  itfl  contents 

and  in  accordance  with  her  instructions  (she  being  of  sound  mind), 
it  wa^  properly  admitted  to  probate,  and  established  as  her  last,  will 
and  testament,  aotwithstanding  it  was  written  in  the  English  lan- 
guage, which  die  could  not  read  or  understand. 
.1  ii<l y tin  ni  affirmed. 


390  FOKM,   NATUKE,   AND   SCOPE   OF   WILLS. 

INFORMAL  WILL. 
In  the  Goods  of  W.  Coles. 

English  Court  op  Probate,  1871. 
(L.  R.  2  P.  &  D.  362.) 

William  Coles,  of  Victoria  Terrace,  Caledonian  Koad,  Middlesex, 
died  on  the  26th  of  May,  1871,  leaving  a  paper  executed  in  the 
presence  of  two  witnesses,  beginning  "  I  have  given  all  that  I  have 
to  Bertha  Chamberlain  and  her  two  sons,"  etc.  The  paper  was 
dictated  by  testator,  who  distinctly  directed  the  use  of  the  words 
"  I  have  given,"  saying  that  nothing  would  be  plainer.  After  the 
paper  had  been  executed,  the  testator  gave  it  to  one  of  the  wit- 
nesses, Mr.  Gray,  telling  him  that  as  soon  as  the  breath  was  out  of 
the  deceased's  body  he  was  to  take  it  to  Mr.  Williams,  the  trustee 
named  in  it. 

Lord  Penzance. — The  question  is,  is  this  paper  testamentary  ?  A 
case  was  decided  by  me  some  time  ago  (Cock  v.  Cooke,  1  P.  &  D. 
241)  of  a  somewhat  similar  character.  The  principle  is  plain  that 
where  a  paper  is  intended  by  the  testator  to  take  effect  after  his 
death,  it  will  be  admitted  to  probate,  whatever  may  be  its  form. 
Although  this  paper  contains  the  word  "given"  instead  of  "give," 
the  court  cannot  hesitate  to  say  that  the  testator  meant  that  the 
property  should  pass  on  his  death,  he  could  not  mean  to  make  over 
all  his  property  to  the  persons  mentioned  at  once.  It  is,  I  think,  ob- 
vious that  there  is  a  greater  probability  that  the  testator  intended 
the  parties  to  take  on  his  death,  than  that  he  should  denude  him- 
self of  everything  in  his  lifetime.  This  last  supposition  is  most 
improbable.     I  think,  therefore,  the  paper  is  testamentary. 

WHETHER  DEED   OR  WILL.— TEST. 
Jordan  v.  Jordan's  Administrator. 

Alabama  Supreme  Court,  1880. 
(65  Ala.  301.) 

Action  for  conversion,  brought  by  the  administrator  of  the  estate 
of  Mrs.  Elizabeth  G.  Jordan  and  others.  The  defendants  claimed 
title  under  an  instrument  executed  by  Mrs.  Jordan,  and  offered  in 
evidence  as  a  deed  of  gift.  The  administrator  objected  to  its  ad- 
mission in  evidence  on  the  ground  that  it  was  in  fact  a  will.     It 


WHETHEK  DEED   OE  WILL. — TEST.  391 

■was  admitted  that  it  Lad  never  been  admitted  to  probate  as  such. 
The  defendants  also  offered  in  evidence  an  instrument  purporting 
to  be  a  deed  of  land,  the  admission  of  which  was  also  objected  to. 
The  court  sustained  both  objections,  and  the  defendants  excepted. 

The  facts  are  stated  in  the  opinion. 

£ri<-k:  II.  C.  J. — Any  instrument  in  writing,  whatever  may  be  its 
form,  executed  in  conformity  to  the  provisions  of  the  statute  of  wills, 
manifesting  a  posthumous  destination  of  property,  real  and  personal, 
can  take  effect  only  as  a  will ;  and  rights  under  it  cannot  be  asserted 
or  recognized,  until  it  has  been  admitted  to  probate  in  the  proper 
form.  Dunn  v.  Bank  of  Mobile,  2  Ala.  152  ;  Shepherd  v.  Nabors, 
6  Ala.  631;  Gilliam  v.  Martin,  42  Ala.  365;  Daniel  v.  Hill,  52 
Ala.  430;  Elmore  v.  Mustin,  28  Ala.  309;  Kinnebrew  v.  Kinne- 
brew,  35  Ala.  »'>25.  It  is  not  a  matter  of  moment,  what  is  the 
designation  of  the  instrument  upon  its  face,  nor  how  it  may  have 
been  received  and  acted  upon  by  the  parties  having  beneticial  in- 
terests under  it.  The  true  inquiry  is,  as  to  the  effect  and  operation 
the  party  making  it  intended  it  to  have.  A  will  is  defined  to  be 
an  instrument  by  which  a  person  makes  a  disposition  of  property 
to  take  effect  after  his  death ;  and  as  its  operation  is  postponed 
during  life,  it  is,  in  its  own  nature,  ambulatory  and  revocable.  It 
is  this  ambulatory  and  revocable  quality  which  distinguishes  it 
from  deeds  and  other  similar  instruments  of  transfer  or  convey 
ance,  taking  effect,  if  at  all,  at  the  time  of  execution.  Not  that 
instruments  of  transfer  or  conveyance  must  necessarily  pass  present, 
immediate  right-  of  possession  or  enjoyment ;  but,  whatever  is  the 
right  or  interest  created,  it  must  pass  at  the  time  of  execution. 
When  the  interest  is  created  and  passes  by  such  instruments,  the 
postponement  of  possession  or  enjoyment,  or  of  vesting,  is  pro- 
duced by  the  express  terms,  and  not  by  the  natun  of  the  instru- 
ment. The  illustration  usually  given  in  the  hooks  is  of  a  deed  hy 
which  the  grantor  limits  lands  to  the  use  of  himself  for  life,  with 
remainder  to  the  u-e  of  A  in  ice.  The  usufructuary  enjoyment 
i-  precisely  the  same,  as  if  he  should  by  his  will  devise  such  land- 
to  A  in  fee.   The  difference  between  the  two,  however,  is  apparent. 

Immediately  upon  the  execution  of   the  deed,  the  remainder  in  \>r 

vests,  though  possession  and  enjoymenl  is  postponed.  By  no  act 
<■!'  the  grantor  can  it  be  revoked,  annulled,  defeated,  or  impaired. 
The  execution  of  the  will  passes  no  estate,  vests  no  title, creates  no 


392  FORM,   NATURE,   AND   SCOPE   OF  WILLS. 

interest  or  right ;  all  are  dependent  upon  the  death  of  the  testator, 
in  whom  resides  the  absolute,  unqualified  power  of  revocation, 
though  it  is  not  reserved  or  expressed. 

It  is  often  a  matter  of  extreme  difficulty  to  ascertain,  when  an 
instrument  is  unskillfully  drawn — when  it  employs  alike  apt  words 
of  conveyance  and  of  devise,  or  bequest,  commingles  provisions  often 
found  in  deeds,  with  provisions  generally  found  in  wills ;  and  there 
is  an  express  postponement  of  possession  and  enjoyment  until  after 
the  death  of  the  party  executing  it— whether  it  is  intended  as  tes- 
tamentary, or  as  a  conveyance  operating  presently  to  create  estates, 
rights  and  interests,  which  are  irrevocable.  It  is  the  intention  of 
the  .party  executing,  to  be  collected  from  the  terms  of  the  instru- 
ment, when  these  are  read  in  the  light  of  surrounding  circum- 
stances, which  must  prevail. 

The  instrument  proposed  to  be  introduced  as  the  evidence  of  the 
appellants'  title,  and  of  the  divestiture  of  the  title  of  the  intestate, 
Mrs.  Jordan,  was  executed  and  delivered  by  her ;  and  it  is  properly 
executed  either  as  a  will  or  as  a  deed.  It  disposes  of  money  then  in 
the  possession  of  the  intestate,  and  of  money  to  be  raised  by  a  sale 
of  personal  property  not  otherwise  specifically  disposed  of;  and 
contains  directions  as  to  the  burial  and  decoration  of  the  grave  of 
the  maker.  It  commences  with  the  words :  "  For  and  in  consider- 
ation of  the  love  and  affection  I  have  for  the  following  named  per- 
sons, I  do  give,  grant,  and  convey  to  each  one  of  them  ";  and  it 
concludes,  "  and  I  also  further  request  and  enjoin  upon  my  son, 
David  C.  Jordan,  that  he  take  charge  of,  and  manage  in  the  inter- 
est, and  to  the  benefit  of  my  daughter,  Aretlmsa  A.  Jordan,  all 
the  real  and  personal  property  herein  and  elsewhere  deeded  unto 
her,  the  said  Arethusa  A.  Jordan.  I  also  further  request  that  my 
sons,  Alexander  Jordan  and  David  C.  Jordan,  shall  take  charge  of 
all  the  real  and  personal  property  herein  and  elsewhere  deeded, 
and  that  they  proceed  to  place  the  owners  thereof  in  possession  of 
the  same,  with  the  least  delay  and  expense  possible,  after  my 
death  ";  followed  by  the  testimonial  clause  usual  in  deeds.  There 
cannot  be  any  particular  importance  attached  to  the  word  "  deeded" 
though,  in  popular  acceptation,  it  signifies  a  transfer  by  deed,  found 
in  the  concluding  clause  of  the  instrument  which  we  have  quoted. 
In  a  preceding  part  of  the  instrument  is  found  this  clause,  "  The 
proceeds  of  all  the  personal  property  and  effects  not  otherwise  herein 


WHETHER   DEED    OR   WILL.— TEST.  393 

lequeathed"  which  signifies  a  disposition  by  will.  These  words 
were  doubtless  used  loosely  and  carelessly,  and  do  not  afford  any 
valuable  aid  in  arriving  at  the  intention  of  the  donor.  That  is 
more  satisfactorily  ascertained  from  a  careful  consideration  of  the 
whole  structure,  and  all  the  terms  of  the  instrument,  to  which  we 
are  confined,  there  not  being  any  evidence  of  the  circumstances 
surrounding  the  donor  when  it  was  executed,  which  would  aid  in 
ascertaining  the  intention.  From  the  whole  structure,  and  all  the 
terms  of  the  instrument,  we  are  satisfied  it  is  strictly  testamentary 
— that  it  was  intended  by  the  donor  as  a  disposition  of  all  her  per- 
sonal property,  to  take  effect  after  her  death. 

The  sons,  David  C.  and  Alexander  Jordan,  are  not  nominated 
as  executors;  but  the  duties  they  are  required  to  perform,  are 
strictly  executorial.  It  is  only  after  the  death  of  the  donor,  that 
they  have  capacity  or  authority  to  take  any  step ;  and  then  it  is 
that  they  are  to  take  charge  of  all  the  property,  the  money  on 
hand,  and  the  other  property  of  which  disposition  is  made,  and  to 
place  the  owners  in  possession.  An  irrevocable  disposition  of 
money  in  the  possession  of  the  donor,  and  of  which,  during  life, 
possession  is  to  remain  with  him,  is  not  usual,  nor  can  it  be  sup- 
posed it  was  in  this  instance  contemplated.  It  would  scarcely 
have  been  a  violation  of  duty  and  of  good  faith,  which  a  court  of 
equity  would  have  intervened  to  prevent,  if  the  donor  had  made  a 
hazardous  loan,  or  an  injudicious  investment  of  the  money,  after 
the  execution  of  the  instrument;  nor  can  we  suppose  that,  under 
any  circumstances,  the  aid  of  the  court  could  have  been  invoked, 
to  compel  her  to  give  security  for  its  payment  OU  her  death  ;  or 
that  a  receiver  would  have  been  appointed,  to  hold  it  during  her 
life,  that  on  her  death  it  should  reach  the  destination  given  it  by 
the  instrument.      Nor  can  it  be  supposed  that  it  was  the  intention, 

if  from  any  cause  the  identical  money  on  hand  at  the  execution  of 
the  instrument  Bhould  have  been  lost  or  converted,  and  at  her  death 

there    was   \sic\   other   moneys  sutlieient    to   meet    the    dispositions 

of  the  instrument,  that  the  right  of  the  donees  should  not  attach 
to  such  moneys     that   their  rights  were  confined  and   limited  to 

the    identical    money  in    the    hands  of   the  donor  when    the  iietru 

ment  was  executed.  Vet,  if  it  is  a  deed,  -peaking  and  taking 
effect  from  il  execution,  that  would  be  the  consequence ;  while, 
if  it  is  a  will,  speaking  and  taking  effect   from  the  death  of  the 


394  FORM,   NATURE,   AND   SCOPE   OF   WILLS. 

donor,  their  rights  would  attach  to  the  moneys  then  on  hand. 
Again,  the  disposition  is  of  all  the  personal  property  of  the  donor  ; 
and  if  it  be  a  deed,  it  strips  her  of  all  right  and  interest  therein, 
except  possession  during  her  life.  It  is  evident,  portions  of  this 
property  must  be  consumed  in  the  use,  and  much  of  it  was  of  that 
kind  which  may  be  designated  perishable.  If  the  instrument  was 
irrevocable — if  it  was  a  deed,  and  she  was  limited  to  the  use  for 
life — she  would  have  been  subject  to  disturbance  by  the  donees  in 
remainder,  if  wasteful  in  the  use,  or  negligent  in  the  care  of  the 
property.  Again,  the  gift  to  the  daughter  Arethusa,  of  other 
things,  is  of  "  a  horse  to  be  selected  of  her  own  choice  out  of  my 
stock  of  horses  ;  also,  twelve  months'  support  out  of  any  provisions 
or  proceeds  of  the  crops  grown  upon  my  place."  This,  taken  in 
connection  with  the  gifts  of  feather-beds  to  her  children  and 
grandchildren,  and  with  the  directions  for  the  burial  and  decora- 
tion of  the  grave  of  the  donor,  indicate  that  her  purposes  were 
testamentary.  And  when  the  instrument  is  examined  in  all  its 
parts — when  the  consequences  of  construing  it  as  a  deed,  and  the 
character  of  the  property  upon  which  it  operates,  are  considered — 
we  cannot  avoid  the  conclusion,  that  it  is  strictly  testamentary  ;  if 
these  consequences  had  been  explained  to  the  donor,  at  the  time  of 
its  execution,  and  of  her  the  inquiry  had  been  made,  whether  she 
intended  conveying  an  interest  that  would  vest  before  her  death, 
and  would  be  irrevocable,  that  she  would  have  answered  it  nega- 
tively ;  that  her  purpose  was  a  disposition  taking  effect  on  her 
death,  leaving  her  during  life  the  unqualified  dominion  of  owner- 
ship, with  all  its  incidents. 

The  instrument  executed  on  the  same  day,  purporting  to  be  a 
conveyance  of  lauds,  is,  doubtless,  the  instrument  referred  to  as 
passing  property  "  elsewhere  deeded"  That  it  may  and  ought  to 
be  looked  to,  in  determining  whether  the  instrument  under  which 
title  to  the  personal  property  is  claimed  is  a  deed  or  a  will,  we  do 
not  doubt.  All  contemporaneous  instruments,  referring  the  one 
to  the  other,  should  be  considered  in  construing  either  ;  and  when 
two  instruments  have  been  contemporaneously  executed,  the  one 
in  form  a  will,  and  the  other  a  deed,  the  nearness  of  the  one  act  to 
the  other  has  induced  the  courts  to  regard  them  as  one.  1  Jarman 
on  Wills,  15.  It  will  not  follow,  however,  because  the  instrument 
relating  to  the  lands  is  a  deed,  that  the  instrument  relating  to  the 


WILL   IN   FORM   OF   AN   ASSIGNMENT.  395 

personalty  would,  of  necessity,  be  a  like  conveyance.  An  argu- 
ment could  be  drawn,  of  more  or  less  importance,  from  the  fact, 
dependent  upon  the  uncertainty  in  which  its  doubtful  and  am- 
biguous terms  mio-ht  leave  the  mind.  If  the  two  instruments 
were  embodied  in  one,  yet,  it  could  be  testamentary  in  one  part, 
and  a  present  conveyance  in  another.  Kinnebrew  v.  Kinnebrew, 
35  Ala.  628.  Without  determining  whether  the  instrument  re- 
lating to  the  lands  should  be  regarded  as  testamentary,  or  as  a 
deed,  it  is  too  variant  and  distinct  in  its  terms  to  control  the  dispo- 
sitions of  the  personal  property. 

The  rulings  of  the  Circuit  Court  were  in  conformity  to  these 
views,  and  its  judgment  must  be  affirmed. 

[Also  for  valuable  discussion  and  application  of  the  same  prin- 
ciples, Williams  v.  Tolbert,  GG  Ga.  127;  Nichols  v.  Chandler,  55 
Ga.  3G9;  Robertson  v.  Smith,  L.  R.  2  P.  &  D.  43;  Sperber  v. 
Balster,  66  Ga.  317;  Reed  v.  Hazleton  (Kan.),  15  Pac.  Rep. 
177;  Lautenshlager  v.  Lautenshlager,  80  Mich.  285;  Cover  v. 
Stem  (Md.),  L0  Atl.  Rep.  231;  Goods  of  Slinn,  15  P.  D.  156; 
McKinnoD  v.  McKinnon,  46  Fed.  Rep.  713;  Turner  v.  Scott,  51 
Penn.  St.  126.  Georgia  has  a  statute  on  this  point,  but  it  merely 
embodies  the  general  rule.] 

WILL  IN  FORM  OF  AN  ASSIGNMENT. 
Robinson  v.  Brewster. 

iLLixors  Supreme  Court,  1892. 
(30  N.  E.  Rep.  683.) 
Eeeoe  to  Circuit  Court,  Macon  County. 
Hill    t«»    Bel    aside    the  will    of  Joseph    Rnbinsull.      A  decree  was 

entered  in  accordance  with  a  verdict  sustaining  the  will.  Com- 
plainants bring  error. 

Joseph  Robinson  signed,  in  the  presence  of  two  attesting  wit- 
nesses, an  instrument  in  the  following  form: 

"  Know  all  men  by  these  presents,  tint  I.  Joseph  Robinson,  for 
the  consideration  of  one  dollar,  to  me  in  haud  paid,  ;i-  well  as  my 
affection,  do  hereby  assign  and  set  over  t<>  my  daughter  Eliza  .lane 
Brewster  all  of  mj   property,  both  personal  and  real,  t"  have  tin- 


396  FORM,   NATURE,   AND   SCOPE   OF   WILLS. 

same  after  my  death.     "Witness  my  hand  and  seal  this  7th  day  of 
May,  1877. 

his 

Joseph  X  Robinson.         [Seal.] 

mark 

Attest :  J.  S.  Post.     E.  McClellan." 

Magruder,  C.  J.  [After  quoting  the  paper  propounded,  names 
of  parties,  etc.,  and  giving  testimony  of  witnesses,  and  finding,  1, 
that  the  instrument  was  duly  executed,  and,  2,  that  there  was  no 
error  in  the  admission  of  certain  evidence  objected  to  on  the  trial.] 
"  3.  As  to  the  form  of  the  instrument.  '  A  last  will  and  testament 
may  be  defined  as  the  disposition  of  one's  property  to  take  effect 
after  death.'  1  Redf.  Wills  (4th  ed.),  p.  5,  c.  2,  sec.  2,  par.  1. 
The  instrument  in  controversy  is  a  disposition  of  property  to  take 
effect  after  death.  It  is  testamentary  in  character,  and  wholly  ex- 
ecutory. The  daughter  was  not  to  have  or  become  the  owner  of 
the  estate  until  her  father's  death.  The  vesting  is  deferred, 
both  in  interest  and  possession,  until  the  death  of  the  maker.  The 
statement  to  McClellan  that  he  was  making  his  will,  and  request 
to  McClellan  to  come  and  witness  the  will,  made,  as  such  state- 
ment and  request  were,  only  a  few  moments  before  signing  the 
paper,  so  as  to  be  really  a  part  of  the  res  gestae,  indicate  that  it 
was  Robinson's  intention  to  make  this  instrument  his  will."  (Cit- 
ing numerous  authorities.  The  court  here  find  certain  objections 
to  the  charge  of  the  trial  judge  unfounded.) 

The  decree  of  the  Circuit  Court  is  affirmed. 


POWER  OF  ATTORNEY  AND  WILL  IN  SAME  INSTRUMENT. 
Doe  on  the  demises  of  Elizabeth  Cross  vs.  Cross. 

Court  of  Queen's  Bench,  1846. 

(8  Q.  B.  714.) 
Ejectment. 

On  the  trial  before  Piatt,  B.,  at  the  last  Oxfordshire  Assizes,  it 
appeared  that  the  title  of  the  lessor  of  the  plaintiff  depended  on 
the  effect  of  a  certain  instrument,  executed  by  Peter  Cross,  then 
tenant  in  fee  simple  of  the  property  and  a  soldier  on  service  in 
the  West  Indies.  This  was  in  form  a  power  of  attorney  to  his 
mother,  Elisabeth  Cross,  widow,  to  receive  and  retain  the  rent, 


CONDITIONAL   WILLS.  397 

etc.,  "  until  I  may  return  to  England."  It  then  proceeds :  "  or, 
in  tbe  event  of  my  death,  I  do  hereby,  in  my  name,  assign  and 
deliver  to  the  said  E.  C.  the  sole  claim  to  the  before  mentioned 
property,  to  be  held  by  her  during  her  life,  and  disposed  of  by 
her  as  she  shall  deem  proper  at  the  time  of  her  death :  at  the  same 
time  I  wish  it  to  be  understood  that  I  claim  all  right  and  title  to 
the  said  property  on  mv  arrival  in  Great  Britain,  when  the  term 
of  the  said  E.  C.'s  occupancy  shall  be  considered  at  an  end.  In 
witness,"  etc.  The  instrument  was  attested  by  witnesses,  and  its 
execution  satisfied  the  statute  of  wills. 

/'■  A  /•  Ci'oss  afterwards  died  in  India,  never  having  returned  to 
Great  Britain,  leaving  Elizabeth  Cross  surviving  him.  The  title 
of  the  plaintiff's  lessor  came  through  this  instrument  as  a  devise 
to  Elizabeth  Cross.  The  question  was,  whether  it  constituted 
;i  i r 111. 

Verdict  for  plaintiff  on  the  ground  that  the  instrument  was  a 
will  subject  to  leave  to  move  for  nonsuit. 

Keating  now  moved  according  to  the  leave  reserved. 

Wittia/m,8,  -I. — The  power  of  attorney  operates  in  one  event 
only,  and  for  a  certain  time.  But  it  by  no  means  follows  that 
the  instrument  may  not  take  effect  as  a  will,  in  the  event  of  the 
party's  death. 

Wightman,  J. — Mr.  Keating  appears  to  admit  that  this  instru- 
ment would  be  a  will  if  it  contained  only  the  disposing  part.  I  Jut 
it  docs  not  follow,  from  the  other  provisions  being  inserted,  that 
such  part  is  not  to  operate. 

i  Lord  /A  /,//!<(//,  C.  .] .,  and  Patteson,  J.,  delivered  opinions  to 
the  same  effect.) 

Rule  refused. 

[For  a  discussion  of  an    instrument   containing  both   a   contract 

and  a  will,  sec  Reed  v.  Eazleton  (Kan.),  L5  Pac.  Rep.  177. | 

TI.    CONDITIONAL   WILLS. 

A  testator  may.  if  In'  washes,  make  a  conditional  will,  which. 

upon  hie  death,  will  or  will  not  be  his  lasl  will: ording  as  the 

condition  ha-  or  has  not  happened.     The  condition,  in  such  cast   . 

i-    llSUally  tin-   death    of   tlic  testator  while  on  a  certain   journey,  or 

before  a  certain  time,  etc.     in  given  ca  e  .  it  is  often  a  perplexing 


398  FORM,   NATURE,   AND   SCOPE   OF   WILLS. 

question  whether  testator  has  in  fact  intended  to  make  a  conditional 
will  to  take  effect  only  in  case  the  specified  contingency  happens, 
or  whether,  on  the  other  hand,  the  likelihood  that  the  contingency 
would  happen  acted  upon  testator's  mind  merely  as  an  incentive 
to  make  a  will  with  the  intention  that  having  once  made  it,  it 
should  hold  good  at  his  death  whether  the  contingency  had  in  fact 
happened  or  not.  If  there  is  any  doubt,  the  courts  will  lean  heavily 
in  favor  of  holding  the  will  unconditional.1 

An  important  distinction  is  here  also  to  be  noticed  between  a 
conditional  will  (where  the  will  does  not  take  effect  at  all  unless 
the  condition  is  fulfilled),  and  a  will  containing  a  conditional  legacy 
or  devise.  In  this  latter  case  the  will  itself  holds  good  in  any 
event,  and  it  is  only  the  particular  legacy  or  devise  which  fails  if 
the  condition  is  not  fulfilled.2 


CONDITIONAL   WILL. 
In  the  Goods  of  John  Moss  Winn  (deceased;. 

English  Court  of  Probate,  1861. 
(2  Sw.  &  Tr.  147.) 

John  Moss  Winn  duly  executed  a  testamentary  paper  bearing 
date  the  18th  of  December,  1849,  commencing  in  the  following 
words :  "  Be  it  known  unto  all  men  that  I,  John  Moss  Winn,  of 
Birkenhead,  in  the  county  of  Chester,  formerly  a  bookkeeper, 
but  now  out  of  business,  being  on  the  eve  of  embarking  for  San 
Francisco,  South  America,  or  Mexico,  do  hereby,  in  the  case  of  my 
decease  during  my  absence  being  fully  ascertained  and  proved,  do 
and  will  over  the  whole  of  my  furniture,  etc.,  or  any  property  of 
whatsoever  description,"  for  the  joint  support  of  his  wife  and 
children  during  the  wife's  widowhood,  and  in  case  of  her  second 
marriage  for  the  children,  and  appointed  his  brother  William 
Henry  Winn  and  a  Mr.  M'Culloch,  executors. 

John  Moss  Winn  sailed  for  San  Francisco  in  January,  1850,  the 
will  being  deposited  with  his  brother.  He  returned  to  England  in 
June,  1852,  and  William  Winchester,  who  was  one  of  the  attest- 
ing witnesses  of  the  will,  deposed  that  during  John  Moss  Winn's 


1  Cody  v.  Conly,  27  Gratt.  (Va.)  313  ;  Goods  of  Porter,  L.  R.  2  P.  &  D.  22. 
8  Damon  v.  Damon,  8  All.  192. 


CONDITIONAL   WILL.  399 

stay  in  England,  he  frequently  mentioned  to  the  deponent  that  he 
intended  the  will  made  by  him  on  the  18th  of  December,  1849, 
prior  to  his  going  to  San  Francisco,  and  which  was  then  deposited 
with  his  brother  William,  to  continue  in  force  in  case  of  his  death 
during  the  time  he  should  be  away  on  a  voyage  he  then  intended 
to  make  to  Australia. 

In  July,  1852,  Winn  left  England  for  Australia,  and  the  last 
thing  which  had  been  heard  of  him  was  a  letter  from  him  received 
by  his  wife,  which  bore  date  the  11th  of  September,  1853.  Thus, 
in  the  end  of  1860,  the  presumption  of  law  arose  that  he  was  dead. 
William  Winn  died  in  August,  1852,  and  the  paper  in  question 
was  found  among  his  papers  by  his  executor,  and  the  widow  now 
asked  for  letters  of  administration  with  the  will  annexed. 

Dr.  Swdbey  moved  accordingly. 

Sir  C.  CressircU. — In  the  Dresent  case  the  condition  seems  abso- 

I 

lutely  a  condition  precedent.  Again,  can  I,  since  the  Wills  Act.  ad- 
mit evidence  of  such  declaration  of  the  deceased  as  are  now  before 
me?  Would  it  not  be  making  a  will  by  word  of  mouth?  You 
had  better  consider  this  point. 

Dr.  Swdbey,  referring  to  Parsons  v.  Lanoe,  1  Yes.  Sen.  190, 
said  that  in  that  case  Lord  Hardwicke  held  similar  words,  "If  Idie 
before  my  return  from  my  journey  to  Ireland,"  to  be  an  absolute  con- 
dition, and.  under  the  Statute  of  Frauds,  considered  that  he  was  not 
at  liberty  to  admit  parol  evidence  to  show  adherence  after  the  return 
from  Ireland.  Thus  unless  the  court  can  in  the  present  case  dis- 
connect the  words  "  during  my  absence  "  from  the  "San  Francisco 
or  Mexico, "   it  would  seem  that  Parsons  v.  Lanoe  must  govern  it. 

Sir  C  ('/■<  s.sivell. — I  am  afraid  it  must  be  so.  The  court  is  un- 
willing by  reason  of  such  expressions  to  set  aside  testamentary 
paper.-,  which  probably  contain  the  deceased's  intentions,  but  the 
present  words  are  too  clear  to  admit  of  any  doubt  as  to  their  legal 
construction. 

Motion  refused. 


400  FORM,   NATURE,   AND   SCOPE   OF  WILLS. 

WHETHER  CONDITIONAL— TEST. 
In  the  Goods  of  I>obson. 

English  Court  of  Probate,  1866. 
(L.  R.  1  P.  &  D.  88.) 

William  Dobson  died  on  the  21st  day  of  November,  1865,  leav- 
ing a  will  of  the  29th  of  January,  1863,  which  commenced  with  the 
following  words  :  "  January  29th,  1863.  Thursday  morning.  In 
case  of  any  fatal  accident  happening  to  me,  being  about  to  travel 
by  railway,  I  hereby  leave  all  my  property  to,"  etc.,  etc.  The  tes- 
tator did  not  die  upon  the  journey  which  he  took  immediately 
after  executing  this  will,  and  a  question  was  raised  in  the  registry 
whether  it  was  contingent  on  that  event. 

Dr.  Spinks  moved  for  a  grant  of  administration  with  the  will 
annexed. 

Sir  J.  P.  Wilde. — I  am  unwilling  to  refuse  probate  of  a  testa- 
mentary paper  on  the  ground  that  it  was  contingent,  unless  it  is 
clear  that  the  testator  intended  that  it  should  operate  only  in  a  cer- 
tain event,  or  during  a  certain  period.  In  the  Goods  of  Winn  ' 
was  a  case  in  which  the  court  felt  constrained  to  hold  that  the  will 
was  contingent.  In  that  case  the  words  were  :  "  Being  on  the  eve 
of  embarking  for  San  Francisco,  South  America,  or  Mexico,  I  do 
hereby,  in  the  case  of  my  decease  during  my  absence  being  fully  as- 
certained and  proved,  do  and  will  over  the  whole  of  my  furniture, 
etc.,  or  any  property  of  whatsoever  description,"  etc.  Parsons  v. 
Lanoe 2  was  cited  in  that  case,  and  both  were  instances  in  which 
the  court  saw,  that  the  testator  had  expressly  limited  the  operation 
of  the  will  to  a  certain  time,  and  accordingly  refused  probate  of  it. 
But  this  case  goes  by  no  means  so  far.  The  testator's  meaning 
seems  to  me  to  have  been  this :  "  My  mind  is  drawn  to  the  consid- 
eration that  all  railway  travelling  is  attended  with  danger,  and 
therefore  I  think  I  had  better  make  my  will."  Administration 
with  the  will  annexed  will  therefore  be  granted. 


1  2  Sw.  &  Tr.  147.  '  1  Ves.  Sen.  190. 


CONDITIONAL   WILL.  401 

CONDITIONAL  WILL. 
Appeal  of  Joseph  M.  Morrow. 

Pennsylvania  Supreme  Court,  1887. 
(116  Penn.  St.  440.) 

Petition  to  admit  to  probate  a  paper  alleged  to  be  the  last  will 
of  Thomas  "W.  Morrow.  Application  denied  by  the  register  of 
wills  of  Perry  County,  and  appeal  dismissed  by  the  Orphans'  Court 
of  said  county.     Appeal  to  the  Supreme  Court. 

On  Monday,  September  14,  1885,  deceased,  a  farmer,  who  was 
engaged  in  drilling  wheat  on  his  farm,  broke  his  drill,  and  was 
obliged  to  take  it  to  Landisburg  to  be  repaired.  Before  he  left 
home  he  executed  the  following  paper : 

"  I  am  going  to  town  with  my  drill  and  i  aint  feeling  good  and 
in  case  if  i  shouldend  get  back  do  as  i  say  on  this  paper  tomey 
and  robert  is  to  pay  they  last  layment  one  this  place  Samuel  nows 
his  payments  Joseph  you  are  to  have  that  land  and  town  property 
and  pay  Magy  $3.00  dollars  $1.00  dollar  a  year  without  interest 
tomy  Miten  is  to  have  his  colt  fore  fredum. 

tomy  and   robert  is  to  settle  up  and  make  sail  and  devide  the 

money  equil  amung  my  five  boys  this  i  write  down  and  sign  to 

my  will. 

Tuo.  W.  Morrow.'' 

On  his  way  he  fell  seriously  sick,  the  next  Thursday  was 
brought  home  still  sick,  grew  worse,  and  on  the  following  Mon- 
day died. 

The  opinion  in  the  Orphans'  Court  was  rendered  by 

Barnett,  J\  J.     (After  stating  facts.) 

We  have  been  referred  by  the  aide  and  zealous  counsel  of  the 
proponent  to  the  following  authorities : 

Jarman  on  Wills,  5  Amer.  ed.  p.  28.  It  is  there  said,  "A 
will  may  be  made  so  as  to  take  effect  only  on  a  contingency,  and 
if  the  contingency  docs  not  happen  the  will  ought  not  to  be  admit- 
ted to  probate."  In  note  2,  there  are  cited  several  examples  of  con 
tingent  wills,  among  others  the  following:  A  person  intending  to 
go  to  Ireland  made  his  will  in  these  words:  "If  I  die  before  my 
return  from  my  journey  to  [reland,  I  direct,"  etc.  The  testator 
went  to  [reland,  returned  to  England,  and  died  some  years  after- 
26 


402  FORM,   NATURE,   AND   SCOPE   OF   WILLS. 

wards.  It  was  held  by  Lord  Hardwicke  that  the  will  was  contin- 
gent, depending  upon  the  event  of  the  testator  returning  to  Eng- 
land or  not.  As  he  did  return  the  will  could  have  no  effect,  but 
was  void  :  Parsons  v.  Lanoe,  1  Vesey  Sr.  190.  The  will  of  a  mar- 
iner commencing,  "  Instructions  to  be  followed  if  I  die  at  sea  or 
abroad,"  is  conditional:  Lindsay  v.  Lindsay,  L.  R.  2  Prob.  &  Div. 
459.  In  Kentucky  a  will  saying,  "  If  I  never  get  back  home  I 
leave  you  everything  I  have  in  the  world,"  was  held  to  be  contin- 
gent :  Maxwell  v.  Maxwell,  3  Mete.  101.  In  Damon  v.  Damon, 
8  Allen  192,  the  will  began  :  "  In  the  name  of  God,  Amen  !  I, 
J.  "W".  D.,  being  about  to  go  to  Cuba,  and  knowing  the  dangers  of 
voyages,  do  hereby  make  this  my  last  will  and  testament,"  etc. 
"  First.  If  by  casualty  or  otherwise  I  should  lose  my  life  during 
this  voyage,  I  give  and  bequeath  to  my  wife  A.,"  etc.  He  then 
went  on  to  give  other  specific  devises.  He  returned  from  Cuba 
and  died  two  or  three  years  afterwards.  The  will  was  admitted 
to  probate,  but  it  was  held  to  be  conditional  as  to  the  first  clause. 
On  the  other  hand,  in  Tarver  v.  Tarver,  9  Pet.  174,  the  will  be- 
gan :  "  In  the  name  of  God,  Amen  !  Being  about  to  travel  a  con- 
siderable distance,  and  knowing  the  uncertainty  of  life,  think  it 
advisable  to  make  some  disposition  of  my  estate,  do  make  this  my 
last  will  and  testament."  Mr.  Justice  Thompson  said :  "  And  it 
is  contended  that  the  condition  upon  which  this  instrument  was  to 
take  effect  as  a  will,  was  his  dying  on  the  journey  and  not  return- 
ing home  again.  But  such  is  a  very  strained  construction  of  the 
will  and  by  no  means  warranted.  It  is  no  condition,  but  only 
assigning  the  reason  why  he  made  his  will  at  that  time.  But  the 
instrument  taking  effect  as  a  will  is  not  made,  at  all,  to  depend 
upon  the  event  of  his  return  or  not  from  his  journey.  There  is 
no  color,  therefore,  for  annulling  this  will  on  the  ground  that  it 
was  conditional." 

Walkem  on  Wills,  page  257:  The  author  says:  "Papers  pro- 
pounded as  wills  are  frequently  contingent  or  conditional  in  form, 
and  difficulty  is  sometimes  experienced  in  determining  whether  or 
not,  in  the  events  that  have  happened,  the  will  is  to  take  effect. 
The  question  turns  upon  the  point  whether  the  contingency  is 
referred  to  as  the  occasion  of  making  the  will,  or  as  the  condition 
upon  which  the  instrument  is  to  become  operative."  "Where  the 
will  is  made  dependent  on  a  condition  precedent,  it  cannot  be 


CONDITIONAL   AVILL.  40o 

upheld  as  a  will  unless  the  condition  is  performed.  Thus,  when 
the  deceased,  a  master  mariner,  whilst  on  a  voyage,  wrote  with  m\ 
own  hand  a  will  which  commenced  : — k  This  is  the  last  will  and 
testament  of  me,  in  case  anything  should  happen  to  me  during  the 
remainder  of  the  voyage  from  hence  to  Sicily  and  back  to  London, 
that  I  give  and  bequeath,'  etc.  The  court  held  that  the  disposi. 
tions  of  the  will  were  dependent  on  the  event  referred  to  at  the 
beginning  of  it,  and  that  it  had  therefore  only  a  contingent  oper- 
ation and  probate  was  refused,"  and  refers  to  In  the  Goods  of 
Robinson,  L.  R.  2  Prob.  171,  and  other  cases  cited  in  the  note. 
On  the  other  hand  a  will  in  these  words:  "I,  \V.  M.,  being 
physically  weak  in  health,  have  obtained  permission  to  cease  from 
all  duty  for  a  few  days,  and  I  wish  during  such  time  to  be  removed 
from  the  brigAppelina  to  the  floating  hospital  ship  Berwick  Walls, 
in  order  to  recruit  my  health,  and  in  the  event  of  my  death  occur- 
ring dining  such  time,  I  do  hereby  will  and  bequeath,"  etc.,  was 
held  not  to  be  conditional.  And  a  will  commencing  with  the 
words:  "In  ease  of  any  fatal  accident  happening  to  me,  being 
about  to  travel  by  railway,  I  hereby  leave,"  etc.,  was  held  not  to 
be  contingent  on  the  testator's  death  on  that  journey. 

3  Phil.  397,  Strauss  v.  Schmidt,  is  to  the  effect  that  a  condi- 
tion,, I  will  may  be  established  by  subsequent  recognition. 

4  Swab.  &  Trist.  36 ;  In  the  Goods  of  George  Thorne,  deceased. 
The  deceased  died  in  London  in  September,  L864,  leaving  a  paper 
writing  dated'at  the  Gold  Coast  of  Africa,  on  2d  November,  L863, 
containing  inter  <ili<i  as  follows:  "  He  this  known  to  all  concerned  : 
1  request  that  in  the  event  of  my  death  while  serving  in  this  horrid 
climate,  or  any  accident  happening  to  me,  I  leave  and  bequeath  to 
my  belovci  wife,"  etc.  " I  consider  thai  every  person  should  be 
prepared   for  the  worst,  and   particularly  in   such  a  treacherous 

climate  as  this,  which  is  considered  one  of  the  woist  in  the  world, 
which  bas  compelled  me  to  write  this  letter."  It  was  held  not, 
nece88ary  to  hunt  itfl  operation  to  the  event  of  death  while  on    the 

Cold  Coast. 

2Bradf.204:  [n  ex  parte  Lindsay :  the  will  contained:  "Ac- 
cording to  my  present  intention,  should  anything  happen  me 
before  I  reach  my  fnends  in  St.  Louis,  1  wish  to  make  a  correel 
disposal,"  etc.  The  testatrix  went  to  St.  Louis,  returned  to  New 
York,  and  died  there  more  than  a  year  after  the  date  of  the  wilL 


404  FORM,   NATURE,    AND   SCOPE   OF   WILLS. 

The  will  was  admitted  to  probate,  the  surrogate  saying :  "  There  is 
another  question  necessary  to  be  determined  in  this  class  of  cases, 
and  that  is,  whether  the  words  clearly  express  a  contingency  upon 
which  the  instrument  is  to  take  effect,  or  whether  they  may  fairly 
be  interpreted  as  indicating  the  cause  or  occasion  of  making  the 
will ;  whether,  in  the  language  of  Sir  John  Nicholl,  '  it  is  an  abso- 
lute condition,  or  dependent  upon  any  particular  motive  operating 
at  the  time.' '  The  surrogate  cites  the  following  cases  :  In  Burton 
v.  Collingwood,  4  Hagg.  176,  the  will  began :  "  March  5,  1814. 
Morning,  near  one.  All  men  are  mortal,  and  no  one  knows  how 
soon  his  life  may  be  required  of  him.  Lest  I  should  die  before  the 
next  sun,  I  make  this  my  last  will  and  testament,"  etc.  Eighteen 
years  afterwards  the  will  was  held  not  to  be  contingent,  and  was 
admitted  to  probate.  In  Forbes  v.  Gordon,  3  Phill.  625,  the 
words : — "  In  case  of  my  inability  to  make  a  regular  codicil  to  my 
will,  I  desire  the  following  to  be  taken  as  a  codicil,"  etc.,  were  held 
not  to  be  conditional.  In  Bateman  v.  Ponnington,  3  Moore,  P.  C.  C. 
223,  the  instrument  was  written  in  ink,  but  dated  and  signed  in 
pencil,  with  the  addition :  "  In  case  of  accident,  I  sign  this  will." 
The  testator  died  more  than  three  months  afterwards,  and  the  will 
was  admitted  to  probate.  In  the  Goods  of  Ward,  4  Hagg.  179, 
the  paper  propounded  contained  the  expression  :  "  I  mention  these 
matters  thus  particularly,  to  serve  as  a  memorandum  for  you,  in  case 
it  should  be  the  Lord's  will  to  call  me  hence  by  any  fatal  event  in 
the  voyage  or  journey  before  us."  The  paper  was  rejected,  but 
the  testator  had  made  a  subsequent  altered  will.  In  Sinclair  v. 
Hone,  6  Yes.  608,  the  contingency  expressed  in  a  codicil  was : 
"  In  case  I  die  before  I  join  my  beloved  wife  ";  it  was  held  to  be 
contingent,  and  defeated  by  failure  of  the  condition. 

3  Bradf.  366,  in  Thompson  v.  Conner,  the  testator,  Charles 
Stephenson,  bequeathed  to  his  cousin,  Margaret  Baxter,  three 
hundred  dollars ;  "  this  gift  and  bequest  being  subject  to  the  fol- 
lowing condition,  viz. :  that  the  said  Margaret  Baxter  shall  pro- 
duce from  the  officers  of  the  ship  in  which  I  shall  sail  on  my  next 
cruise,  satisfactory  evidence  of  my  decease  during  the  same."  His 
will  was  admitted  to  probate,  the  surrogate  saying :  "  Doubtless, 
the  possibility  of  death  during  the  contemplated  cruise  was  con- 
sidered, and  led  to  the  incorporation  of  the  condition  in  the  will; 
but  then  the  condition  refers  primarily  to  evidence,  or  in  other 


CONDITIONAL   WILL.  405 

words,  he  does  not  give  only  npon  condition  lie  should  die  during 
that  voyage,  but  that  certain  specified  proof  of  his  death  shall  be 
produced."    The  foregoing  cases  illustrate  very  fully  the  difference 
between  the  contingency  which  furnishes  the  occasion  or  motive, 
and  is  given  as  the  reason  for  making  the  will  at  that  particular 
time,  and  the  contingency  upon  which  the  instrument  is  to  take 
effect ;  the  contingency  which  must  happen  before  the  instrument 
becomes  a  will  at  all.     It  is  the  certainty  of  death  and  the  uncer- 
tainty of  the  time  thereof  that  leads  to  the  making  of  a  will.    The 
undertaking  of  a  perilous  journey,  or  the  probable  exposure  to 
more  than  usual  accidents,  may  furnish  the  occasion  for  making  a 
will  at  a  particular  time ;  but  although  the  time  of  making  has 
been  hastened  by  the  apprehension  of  danger,  the  testator  does 
not  consider  the  instrument  inoperative,  or  regard  any  further  dis- 
position necessary  merely  because  the  danger  has  been  survived. 
When,  however,  the  ordinary  uncertainties  of  human  life  have  not 
been  carefully  provided  against,  and  circumstances  may  now  post- 
pone the  opportunity  for  doing  so,  a  crude  instrument  of  testa- 
mentary character  is  sometimes  made  to  bridge  over  the  chasm, 
and  become  operative  only  upon  some  designated  contingency, 
which  shall  prevent  the  execution  of  a  maturely  considered  will. 
It  is  objected  by  his  administrators  against  the  writing  left  by 
Thomas  W.  Morrow,  that  it  belongs  to  this  latter  class;  that  it  is  a 
contingent  will,  and  the  contingency  not  having  happened,  that  the 
will  is  void.     They  rely  upon  the  case  of  Todd's  Will,  2  W.  >Sz  S. 
145.     And  it  was  upon  the  authority  of  that  case  that  the  register 
refund  admission  to  probate.     The  will  of  George  Todd  began  as 
follows:  "  My  wish,  desire  and  intention  now  is,  that  if  I  should 
not   return  (which  I  will,  no  preventing  Providence),  what  I  own 
shall    be   divided    as  follows,"  etc.      C.  J.  GmsoN   refers  to    the 
cases  of    Parsons  v.  Lanoe,  and   Sinclair  v.  Hone,  8ltpra}  in  which 
the  wills  were  held  to  be  contingent.      "  lint,"  he  pays,  "an    inten- 
tion   to   make   the  operation   of  the   paper  eventual,  is  not  near  so 
apparent  in  either  of  these  cases  as  it  is  in  the  one  under  consider 

ation";  and  the  sentence  of  the  court  below  refusing  probate  was 

affirmed.       In    the    case   at    bar   we   think    the    will    illustrates  both 

sorts  of  contingency;  that  which  urged  to  the  present  making 01 

the  instrument,  and  that  upon  which  the  instrument    itself    Was   to 
take  effect.      "  I  am  going  to  town  with  my  drill  ami   I  aint   feeling 


406  FORM,   NATURE,   AND   SCOPE   OF   WILLS. 


L,       UAitllil, 


good,"  was  the  contingency  suggesting  the  propriety  of  making 
the  will.  "And  in  case  if  I  shouldend  get  back,  do  as  I  say  on 
this  paper,"  contains  the  contingency  upon  which  the  will  should 
become  operative.  It  is  very  clear  that  the  will  is  not  presently 
operative.  He  does  not  say:  "I  hereby  give  and  bequeath"; 
there  is  no  immediate  gift.  lie  does  not  say  absolutely,  "do  as 
I  say  on  this  paper";  some  time  at  least  must  elapse  after  his  de- 
parture for  town,  before  any  such  duty  is  imposed.  The  command 
is  provisional :  "  if  I  shouldend  get  hack  do  as  1  say  on  this 
paper."  It  is  plain,  that  his  failure  to  return,  is  the  condition 
precedent  required  before  the  instrument  can  become  effectual. 
If  it  was  ineffectual  until  there  was  a  failure  to  return,  and  if  there 
was  no  such  failure,  it  is  also  plain  it  never  became  effectual ;  that 
it  was  a  contingent  will,  and  became  void  by  the  non-happening 
of  the  contingency. 

In  Todd's  Will  the  expression  is,  "  if  I  should  not  return,  what 
I  own  shall  be  divided  as  follows."  In  Morrow's  Will  the  expres- 
sion is,  "  if  I  shouldend  get  back  do  as  I  say  on  this  paper."  If  I 
should  not  return,  and  if  I  shouldend  get  back,  are  forms  of  ex- 
pression so  plainly  equivalent,  that  we  are  unable  to  see  any 
distinction  or  difference  between  them.  Notwithstanding  the 
able  argument  of  proponent's  counsel,  we  are  of  opinion  that 
the  register's  decision  was  right  in  principle,  and  obedient  to  the 
authority  of  Todd's  Will,  and  must  therefore  be  affirmed.  And 
now,  4th  November,  1886,  the  decision  of  the  register  is  affirmed. 

Thereupon  the  proponent  took  the  present  appeal  and  assigned 
for  error  the  affirmation  of  the  register's  decree  refusing  to  vacate 
the  letters  granted,  and  to  admit  the  alleged  will  to  probate. 

In  the  Supreme  Court  (before  Mercur,  C.  J.,  Gordon,  Trun- 
key,  Sterrett,  Green,  and  Clark,  JJ. ;  Paxson,  J.,  absent),  the 
opinion  was  written  by 

Green,  J. 

It  is  scarcely  possible  to  add  anything  to  the  very  lucid  and  ex- 
haustive opinion  of  the  learned  court  below  in  this  case.  We 
agree  entirely  with  the  conclusion  arrived  at  and  the  reasoning  in 
support  of  it.  The  authorities  cited  are  numerous  and  altogether 
convincing  in  their  character.  Our  own  case  of  Todd's  Will,  2 
W.  &  S.  145,  is  exactly  in  point  and  controls  the  present  con- 


COXDITIOXAL    WILL.  407 

tention.  The  essential  words  there  were,  "  if  I  should  not  return. 
.  .  .  what  I  own  shall  be  divided  as  follows."  The  words  here  are, 
'•  in  case  if  I  shouldend  get  back  do  as  I  say  on  this  paper."  The 
meaning  in  both  these  cases  is  the  same.  A  testament  is  to  take 
place  if  there  is  no  return.  But  there  was  a  return  in  both  in- 
stances, and  the  testament  does  not  transpire.  There  is  no  will 
because  the  condition  on  which  it  was  to  come  into  existence  has 
not  occurred.     In  both  cases  the  deceased  did  return. 

It  is  useless  to  speculate  as  to  what  the  deceased  would  have 
done  had  he  foreseen  the  precise  facts  which  were  to  happen.  He 
has  made  no  provision  for  them.  The  condition  which  lie  has  ex- 
pressed is  one  which  attaches  to  the  operation  of  the  instrument, 
and  the  effect  of  this  is  strongly  expressed  by  Gibson,  C.  J.,  in 
Todd's  Will  case,  thus  :  "  No  text  writer  seems  to  have  distin- 
guished  between  a  condition  attached  to  a  particular  testamentary 
disposition,  and  a  condition  attached  to  the  operation  of  the  in- 
strument." But  in  Parsons  v.  Lanoe,  1  Ves.  Sr.  191,  Lord  Ilard- 
wicke  said  without  hesitation  that  he  would  not  require  an  au- 
thority for  such  a  distinction,  and  that  a  paper  subject  to  a  condi- 
tion ought  not  to  be  admitted  to  probate  after  failure  of  the  con- 
tingency on  the  happening  of  which  it  was  to  have  taken  effect. 
"  Why  should  it  be  proved  as  a  will  when  it  could  not  have  the 
effect  of  one?"  And  so  here.  The  decedent  did  return  from 
the  journey  he  was  about  to  take,  and  the  contingency  upon  which 
tin-  paper  was  to  take  effect  as  a  testament  did  not  happen. 
WTiether  the  journey  was  long  or  short  is  not  material,  it  i>  the 
fact  of  the  return  which  defeats  the  contingency.  It  is  true  he 
was  sick  at  his  return,  but  as  he  lived  several  days  after,  this  fact 
also  is  immaterial.     Further  discussion  seems  unnecessary. 

1  decree  affirmed. 

[Further  illustrations  may  be  found  in  the  following  cases.  Con- 
djiti&nal:  Goods  of  Porter,  L  R.  2  1'.  .V  D.  22;  Dougherty  v. 
Dougherty,  I  Mete.  (Ky.)  25 :  Maxwell  v.  Maxwell,  3  Mete.  (Ky.) 
101;   Robnel  v.  A-hU-k.  I'.»  Mo.  171  ;  Roberts  v.  Roberts,  2  Sw. 

a-  Tr.  337.    AlsoluU  :  French  v.  French,  I  I  W.  Va.  t58 ;  <i ' 

of  Mayd,  6    1'.    I>.    17;    Burton    \.  Collingw 1.    I    Hagg.   1 T  ♦  ■ ; 

Thorne's  Case,  4  Sw.  <fc  Tr.  36  ;  Martin'fi  Case,  I..  R.  I  I'.  & 
I).  380. 


408  FORM,   NATURE,   AND   SCOPE   OF   WILLS. 

See  also  Goods  of  Cawtliorn,  3  Sw.  &  Tr.  417,  where  a  will 
conditional  in  form  was  not  duly  executed  until  after  the  condition 
named  had  become  impossible,  and  it  was  held  absolute.] 

III.   CONTRACTS  CONCERNING  TESTAMENTARY  DISPO- 
SITIONS. 

Every  one, — with  certain  exceptions  already  considered,1 — is  at 
perfect  liberty  to  make  an  agreement  concerning  the  disposition 
to  be  made  of  a  part  or  the  whole  of  his  real  or  personal  property 
at  his  death.2  Such  an  agreement  often  assumes  the  form  of  a 
contract  to  make  a  will  containing  certain  provisions,  or,  in  some 
instances,  a  contract  not  to  make  a  will  containing  certain  pro- 
visions. It  may  be  either  oral  or  written,  and,  if  duly  entered 
into,  and  apart  from  questions  arising  under  the  Statute  of  Frauds, 
will  be  valid  and  binding.3 

These  propositions  are  all  simple  and  obvious.  From  them, 
however,  arise  a  number  of  questions  that  have  caused  a  good 
deal  of  discussion.  These  questions  concern  the  practical  results 
of  such  contracts,  and  the  methods  of  enforcing  the  rights  of  the 
other  party. 

First,  let  us  consider  the  case  of  personal  property,  and  an 
agreement  by  its  owner  to  bequeath  it,  or  a  specified  portion  of 
it,  to  another.  Here,  if  there  is  a  valid  consideration  for  his 
promise,  and  if,  at  his  death,  no  such  bequest  has  in  fact  been 
made,  the  amount  due  may  be  recovered  by  suit  against  the  es- 
tate of  the  decedent.4  Neither  the  omission  to  make  any  will, 
nor  the  making  of  a  will  disposing  of  all  testator's  property  in 
other  directions,  nor  any  other  device  or  neglect,  can  deprive  the 
other  party  to  the  contract  of  his  right  to  enforce  his  claim  against 
the  estate.5     The  consideration  for  the  promise  may  be  an  under- 

1  Ante,  pp.  1-12. 

5  See  Davis  v.  Hendricks,  99  Mo.  478;  Snyder  v.  Snyder  (Wis.),  45  N.  W. 
818. 

3  See  an  elaborate  note,  citing  many  authorities,  in  66  Am.  Dec.  783. 

4  Wellington  v.  Wellington,  145  Mass.  69  ;  Bird  v.  Pope,  73  Mich.  483  ;  Lisle 
v.  Tribble  (Ky.),  17  S.  W.  Rep.  742. 

5  Bird  v.  Pope,  73  Mich.  483  ;  Carmichael  v.  Carmichael,  72  Mich.  76 ; 
Bolman  v.  Overall,  80  Ala.  45  ;  s.  c.  86  Ala.  168 ;  Starkey's  Appeal,  61  Conn. 
199. 


CONTRACTS  CONCERNING  TESTAMENTARY  DISPOSITIONS.   409 

taking  duly  performed  on  the  part  of  the  proposed  legatee  to  care 
for  the  owner  of  the  property,  or  to  render  other  services,1  or  to  re- 
lease an  existing  claim,"  or  anything  else  that  would  constitute,  on 
ordinary  principles,  a  sufficient  consideration  for  a  contract  to  pay 
money.  And  whatever  the  consideration  may  be,  the  contract  must, 
of  course,  be  fully  performed  on  the  part  of  the  proposed  legatee, 
in  so  far  as  such  performance  is.  a  condition  precedent,  in  order  to 
entitle  him  to  enforce  his  claim  against  the  estate.3 

Second,  it  is  obvious  that  when  the  agreement  relates  to  real 
property,  certain  new  elements,  not  usual  in  case  of  personal 
property,  are  introduced  into  the  discussion.  For  in  the  first 
place,  the  contract  must  satisfy  the  provisions  of  the  Statute  of 
Frauds  concerning  real  estate  transactions.4  A  mere  oral  contract 
to  devise  land  is,  therefore,  not  enforceable,6  unless  there  has  been 
performance  by  the  other  party  on  his  part  such  as  to  satisfy  the 
statute.6  And  a  contract  to  give  to  another,  by  will,  all  one's 
property,  both  real  and  personal,  falls  within  the  scope  of  the 
Statute  of  Frauds.7  In  the  next  place,  the  method  of  enforce- 
ment may  be  different  from  that  usual  in  case  of  personal  property. 
For  here  the  proposed  devisee  may  recover  the  land  itself,  by  suit 
against  subsequent  grantees  with  notice,  or  against  the  heirs,  or 
devisees,  of  the  decedent,  as  the  case  may  be.  See  cases  cited 
in  note  in  66  Am.  Dec.  787.  Under  the  present  head  must  also 
be  classed  cases  where  the  contract,  though  relating  to  personalty, 
is  of  such  a  character, — as  where  it  relates  to  a  family  portrait, 
or  heirloom,  or  patents,  etc.,8  that  equity  will  grant  specific  per- 
formance. 

This   equitable    remedy    is   often,  and   with    strict    propriety, 
spoken   of  as  specific  performance.     But  the  exact   meaning,  m 


1  Win itstine   v.  Wilson  (N.  C),  10  S.  W.  Rep.  471. 
'J  Andrews  v.  Brewster,  124  N.  V.  4:',:'.. 
lur  a  case  where  services  were  rendered  without  any  definite  agreement 
concerning  a  legacy,  compare  Porter  v.  Dunn,  181  N.  ^  •  :!'  '• 
1  Where  the  property  la  personal,  the  fact  that  the  contracl  may  he  performed 

•within  a  year  sivcs  it   from  the  statute.      Kent   v.    Kent,  82  N'.    ^  •  560. 

•Gould  v.  Mansfield,  ion  Mass,  his. 

'  Carmichael  v.  Carmichael,  72  .Mich.  76  ;  Johnson  v.  Bubbell,  10  N.  J.  Eq. 

882. 

'  Coul. 1  v.  Mansfield,  1":'.  Mass.  408. 
2  Story,  Eq.  Jur.  g  717  el  acq.    Robinson  on  Pat<  a1  .  .'.  1288. 


410  FORM,   NATURE,   AND   SCOPE   OF   WILLS. 

this  connection,  of  the  term  "  specific  performance,"  is  worthy  of 
a  more  careful  attention  than  it  has  always  received.  For  what 
is  decreed  in  the  cases  under  consideration,  is  the  specific  per- 
formance of  the  essence  and  not  the  letter  of  the  agreement  be- 
tween the  original  parties.  What  the  decedent  agreed  was,  in 
essence,  that  at  his  death  the  other  party  should  become  the  owner 
of  the  land  (or  of  the  portrait,  etc.).  The  additional  promise 
that  he  would  make  a  will  containing  a  devise,  or  bequest  of  the 
specific  property  to  the  other  party,  went  merely  to  the  method 
of  effecting  the  agreed  result.  Now  if  the  owner  dies  without 
making  such  a  will,  it  is  clear  that  the  court  cannot  make  a  will 
for  him,  or  incorporate  into  any  will  he  may  have  made,  a  clause 
giving  the  specific  property  to  the  plaintiff  in  the  suit.1  Nor 
would  there  be  any  advantage  in  adopting  such  a  course  even  if  it 
were  possible.  What  the  court  can  do,  and  will  do,  is  to  compel 
the  holders  of  the  legal  title  with  notice  to  convey  to  the  plaintiff, 
thus  in  effect  carrvino;  out  the  contract  in  full,  although  the  default 
of  the  decedent  has  made  it  impossible  to  render  the  plaintiff  an 
actual  devisee  or  legatee  as  was  proposed  by  the  terms  of  the  con- 
tract. Understood  in  this  accurate  sense,  it  is  exactly  proper  to 
say  that  the  courts  will  enforce  specific  performance  of  the  con- 
tract. But  it  is  not  correct  to  say  that  they  can  enforce  the  spe- 
cific contract  to  make  a  will. 

The  importance  of  this  distinction  lies  chiefly  in  the  fact  that 
these  cases  of  contract  to  make  wills,  with  their  attendant  en- 
forcement by  specific  performance,  and  the  consequent  inability 
of  the  owner,  after  once  making  such  a  contract  and  embodying 
it  in  a  will,  to  effect  any  change  in  the  ultimate  disposition  by  re- 
voking the  will,  have  led  to  frequent  suggestions,  in  more  or  less 
definite  form,  that  such  cases  form,  in  effect,  an  exception  to  the 
universal  rule  that  every  will  is  "  ambulatory "  or  revocable  in 
whole  and  in  part,  during  the  life  of  its  maker.  In  fact,  they 
form  no  such  exception.  The  element  of  revocability  forms  an 
essential  feature  of  every  correct  definition  of  the  term  will.  If 
an  instrument  is  not  revocable,  it  is  not  a  will.  The  fact  is  that 
a  will  such  as  that  just  mentioned,  executed  in  conformity  with 
an  agreement  to  devise,  is  revocable  like  every  other  will.     Its 

1  Bolman  v.  Overall,  80  Ala.  451  (455). 


AGREEMENT  TO  DEVISE.—  SPECIFIC   PERFORMANCE.      411 

maker  may  revoke  it,  and  may  execute  another  will  omitting  the 
proposed  devise.  And  when  he  dies,  such  later  will  must  be  ad- 
mitted to  probate  regardless  of  the  agreement.1  And  if  he  simply 
revokes  the  first  will,  embodying  the  proposed  devise,  and  makes 
no  other,  the  revoked  will  cannot  be  admitted  to  probate,  even 
though  the  agreement  is  offered  in  its  support.  In  line,  the  con- 
tract that  on  the  death  of  the  owner  the  other  party  shall  have; 
the  land,  holds  good  against  the  owner's  heirs  or  devisees,  and 
also  against  grantees  of  the  owner  with  notice  ;  but  the  owner's 
capacity  to  make  and  revoke  as  many  wills  as  he  pleases,  even 
though  they  purport  to  deal  with  the  hind  in  question,  remains 
unimpaired.'  The  form  of  the  action  for  relief  will  of  course  be 
regulated  in  each  case  by  the  situation  of  the  parties  and  the  par- 
ticular state  of  the  facts." 

These  questions  concerning  contracts  to  make  wills  often  arise 
in  connection  with  "joint  wills,"  where  each  party  makes  his  will 
in  favor  of  the  other,  and  where  each  will  forms  the  consideration 
for  the  other.  In  such  cases,  if  the  one  first  dying  fails  to  keep 
his  agreement,  the  fact  that  the  survivor  did  make  his  will  as 
agreed,  does  not  form  a  consideration  such  as  to  entitle  him  to 
enforce  performance,  for  he  may  still  revoke  his  own  will,  and  is 
therefore  in  no  worse  position  than  if  the  agreement  had  never 
been  made.4  The  following  cases  will  illustrate  the  methods 
adopted  by  the  courts  in  practically  working  out  the  problems 
here  discussed. 

AGREEMENT  TO   DEVISE.— SPECIFIC   PERFORMANCE. 
l>avi<l  C.  Parsell  v.  Abraham  Stryker  cl  al. 

New  Fore  Court  of  Appeals,  1869. 
(41  X.  V.  480.) 
Suit  for  specific  performance  of  an  agreement  to  devise  certain 
real  estate. 
Judgment  below  for  plaintiff.  Affirmed  al  General  Term.  Appeal. 


1  Bolman  v.  Overall,  80  Ua.  161  ;  s.  c.  86  Ala.  K'>s 
For  a  long  and  elaborate  discussion  <>r  the  law  governing  contracts  to  m  ike 
a  will,  consult  the  dissenting  opinion  of  Dunne,  0.  J.,  in  Eldred  v.  Warner 
(Ariz.),  25  Pac.  Rep.  800. 

'■  See  cases,  pout. 

4  Gould  v.  Mansfield,  given  ,v<mt. 


412  FORM,   NATURE,   AND   SCOPE   OF  WILLS. 

David  Parsellj  deceased,  was  the  grandfather  of  plaintiff,  and 
of  Hannah,  wife  of  defendant  Stryker.  Deceased  owned  certain 
premises  in  question,  and  in  January,  1854,  made  an  agreement 
with  plaintiff,  the  effect  of  which  is  stated  in  the  opinion,  by  which 
he  promised,  in  consideration  of  certain  conditions  to  be  performed 
by  plaintiff,  to  give  the  farm,  on  his  death,  to  plaintiff,  and  to 
make  a  will  devising  the  same  to  plaintiff.  On  June  1, 1858,  the 
grandfather  executed  a  deed  of  the  same  premises  to  defendant 
Stryker,  took  back  a  mortgage,  and  assigned  the  latter  to  Stry- 
ker's  wife  Hannah,  to  secure  the  support  of  deceased's  wife  and 
child.  He  also  made  a  will  revoking  all  former  wills  and  not  de- 
vising the  premises  to  plaintiff.  Plaintiff  was  in  possession  and 
Stryker  and  wife  knew  of  his  agreement  with  deceased;  but 
plaintiff  did  not  know  of  deceased's  deed,  mortgage,  or  will  of 
June  1,  1858.  In  August,  1858,  the  grandfather  died.  Plain- 
tiff, relying  on  the  grandfather's  agreement,  fully  performed  all 
the  conditions  on  his  part,  both  before  and  after  the  conveyance 
to  defendant,  and  down  to  the  grandfather's  death. 

James,  J.  [After  disposing  of  certain  objections  to  the  valid- 
itv  of  the  agreement,  arising  out  of  its  alleged  violation  of  the 
constitutional  prohibition  of  leases  of  agricultural  land  for  more 
than  twelve  years.] 

The  agreement  under  consideration  is  very  simple  in  intent  and 
purpose,  and  sufficiently  clear  in  expression  to  be  fully  understood. 
There  is  no  imputation  of  fraud  or  undue  influence  in  its  procure- 
ments. It  is  said  to  be  a  hard  and  unconscionable  agreement; 
but,  considering  the  relation,  situation,  and  age  of  the  parties,  and 
the  incumbrance  attached  to  the  farm  in  the  support  and  main- 
tenance of  the  two  women,  it  is  relieved  even  from  that  imputa- 
tion. The  proposition  came  from  the  grandfather;  it  said  in  sub- 
stance, I  am  an  old  man,  eighty  years  old,  with  no  family  but  a 
wife  and  imbecile  daughter  ;  I  have  this  farm,  and  so  much  stock, 
farming  implements,  etc. ;  I  am  too  feeble  to  carry  on  the  farm ; 
you  take  it  and  work  it  on  such  terms  as  long  as  I  live,  and  at  my 
death  you  shall  have  all  there  is  on  the  farm,  and  I,  by  a  last  will 
and  testament,  will  devise  it  to  you  free  of  all  claim  except  for 
the  support  of  my  wife  and  daughter,  Margaret,  for  life.  The 
proposition  was  accepted,  and,  as  the  referee  finds,  performed  by 
the  plaintiff.     As  between  the  parties,  the  agreement  was  fair; 


AGREEMENT  TO  DEVISE. — SPECIFIC    PERFORMANCE.      413 

it  was  supported  by  a  sufficient  consideration  as  between  thein, 
even  though  inadequate  as  between  strangers ;  it  was  therefore 
valid ;  and  the  plaintiff  entitled  to  a  specific  performance  of  its 
obligations. 

[The  court  then  overrule  certain  exceptions  to  rulings  of  the 
referee  at  the  trial.] 

The  agreement  in  question  was  in  legal  effect  a  sale  and  pur- 
chase of  the  farm  ;  under  it,  until  a  breach  at  least,  the  equitable 
title  was  in  plaintiff,  the  nominal  legal  title  in  the  grandfather. 
His  convevances  to  Stryker  only  passed  the  same  nominal  leijal 
title,  subject  to  plaintiff's  equitable  title,  as  Stryker  received  his 
deed  with  full  knowledge  of  plaintiffs  possession  and  rights. 

Had  Stryker  made  known  to  plaintiff  the  conveyances  to  him, 
he  could  have  availed  himself  of  the  covenants  to  the  grandfather; 
but  as  no  notice  of  such  conveyance  was  given  to  the  plaintiff,  his 
performance  to  the  grandfather  was  a  legal  performance  of  the 
agreement.  The  mortgage  passed  no  greater  rights  than  that 
possessed  by  the  mortgagor.     (2  Story's  Eq.  784.) 

As  to  plaintiff's  equities,  it  made  no  difference  whether  the 
agreement  was  to  deed  the  farm  at  a  future  day,  on  performance 
by  plaintiff,  or  to  devise  the  farm  by  a  will  made  in  the  lifetime 
of  the  party,  a  court  of  equity  will  decree  the  specific  perform- 
ance of  the  latter  agreement  after  death,  where  otherwise  unob- 
jectionable, equally  with  a  contract  to  convey  while  living. 

This  question  was  fully  considered  and  properly  decided  in 
Johnson  v.  Efubbell,  in  the  Court  of  Chancery  in  New  Jersey  in 
1  -.",*;,  of  which  I  find  a  report  in  the  American  Law  Register, 
vol.  5,  page  177  [10  N.  J.  Eq.  332].  On  this  branch  of  the 
case  Chancellor  Williamson-  said, ''There  can  be  no  doubt  but 
that  a  person  may  make  a  valid  agreement,  binding  himself 
legally  to  make  a  particular  disposition  of  his  property  by  last 
will  and  testament.  The  law  permits  a  man  to  dispose  of  his 
own  property  at  hie  pleasure;  ;ui<l  do  good  reason  can  be  assigned 

why  he  may  not  make  a  legal  agreement  to  dispose  of  his  prop- 
erty to  a  particular  individual,  or  for  a  particular  purpose,  as  well 
by  will  as  by  conveyance,  to  be  mule  at  Bome  specified  future 
period,  or  upon  the  happening  of  some  future  event.     It  may  be 

unv.i  c    for  fl  man  to  emb;irra.-s    1 1  i  1 1 1  -<  1 1    BS  to  the  tiii.il  dispo  it  ion 

of  his  property,  but  he  is  the  disposer  by  law  of  his  own  fortune, 


114  FORM,   NATURE,   AND   SCOPE   OF   WILLS. 

and  the  sole  and  best  judge  as  to  the  manner  and  time  of  dispos- 
ing- of  it.  A  court  of  equity  will  decree  the  specific  performance 
of  such  an  agreement,  upon  the  recognized  principles  by  which 
it  is  governed  in  the  exercise  of  this  branch  of  its  jurisdiction." 
(Rivere  v.  Rivere,  3  Dessau.  Rep.  195  ;  Jones  v.  Martin,  3 
Ambler  882;  19  Yesey  6(5;  3  Yes.  412;  Podmore  v.  Gurnsey, 
7  Simons  644  to  654.)  The  validity  of  an  agreement  to  devise 
land  by  will  was  recognized  by  this  court  in  Stephens  v.  Rey- 
nolds, 6  N.  Y.  458. 

The  foregoing  are  all  the  questions  presented  on  the  argument 
of  this  appeal.  We  think  the  case  was  properly  disposed  of  by 
the  referee,  and  that  the  order  of  the  General  Term  affirming  the 
judgment  below  should  also  be  affirmed. 

All  the  judges  concurring  in  the  result,  judgment  affirmed. 

[Compare  Cole  v.  American  etc.  Society  (N.  H.),  14  Atl.  Rep. 
73.  An  agreement  to  give  a  legacy  for  services,  if  sufficiently 
clear  and  definite,  will,  if  no  legacy  is  in  fact  given,  raise  a  claim 
against  the  estate,  and  if  indefinite,  a  claim  may  be  based  on  quan- 
tum meruit.  Robinson  v.  Ray  nor,  28  N.  Y.  494 ;  Martin  v 
Wright,  13  Wend.  460.  See  Shakespeare  v.  Markham,  72  N.  Y. 
400  (s.  c.  10  Hun  311);  Eaton  v.  Benton,  13  Hill  (N.  Y.)  576.J 

AGREEMENT  NOT  TO  DEVISE. 
Taylor  v.  Mitchell  et  al. 

Pennsylvania  Supreme  Court,  1878. 
(87  Perm.  St.  518.) 
Error  to  the  Court  of  Common  Pleas. 
Ejectment. 

The  plaintiff  claimed  under  a  certain  agreement  executed  Au- 
gust 5th,  1862,  by  which  William  Carson,  his  grandfather,  agreed 
that  "I  shall  not,  nor  will  I  by  deed,  mortgage,  sale,  judgment, 
devise  or  otherwise,  prejudice  or  interfere  with  the  rights  of  the 
said  John  Carson  and  Nancy  McFadden  [a  son  and  daughter],  as 
my  heirs-at-law,  as  to  their  free  and  equal  share  in  all  my  real  es- 
tate, but  the  same  shall  remain  free  and  uncontrolled,  to  be  divided 
equally  amongst  all  my  legal  heirs,  including  the  said  John  and 
Nancy,  at  my  decease." 

The  title  of  defendants'  lessors  rested  on  a  will  subsequently 


AGREEMENT   NOT   TO   DEVISE.  415 

executed  by  said  William  Carson  on  August  IS,  1869,  devising  the 
lana  in  question  to  certain  of  his  heirs,  excluding  plaintiff.  Will- 
iam Carson  died  in  1871. 

"Verdict  for  plaintiff,  subject  to  the  opinion  of  the  court.  If 
in  the  opinion  of  the  court  the  plaintiff  had  title,  judgment  on 
the  verdict  for  plaintiff.  The  court,  however,  entered  judgment 
for  defendants  11011  obstante  veredicto. 

Trunkey,  J. 

William  Carson's  deed,  dated  5th  August,  1862,  is  so  far  from 
being  testamentary  that  it  contains  his  covenant  not  to  devise  his 
real  estate.  The  sole  question  is,  whether  that  covenant  shall 
prevail  against  his  will.  A  valuable  consideration  is  set  forth, 
namely,  a  conveyance,  for  the  benefit  of  said  William,  by  John 
Carson  ami  Nancy  McFadden,  of  their  title  and  interest  in  a  tract 
of  land  which  they  inherited  from  their  mother;  and,  for  that, 
said  William  covenanted,  "  that  I  shall  not,  nor  will  I  by  deed, 
mortgage,  sale,  judgment,  devise  or  otherwise,  prejudice  or  im  - 
fere  with  the  rights  of  the  said  John  Carson  and  Nancy  McFad- 
den, as  my  heirs-at-law,  as  to  their  free  and  equal  share  in  all  rny 
real  estate,  but  the  same  shall  remain  free  and  uncontrolled,  to  be 
divided  equally  amongst  all  my  legal  heirs,  including  the  said 
John  and  Nancy,  at  my  decease."  The  plain  meaning  is.  that 
for  a  valuable  consideration,  the  covenantor  agreed  to  hold  his 
real  estate  unencumbered,  free,  and  uncontrolled,  to  be  divided 
amongst  hie  heirs.  Had  he  contracted,  for  some  consideration, 
to  sell  his  land  and  give  possession  at  his  death,  and  make  pro- 
vision for  conveyance,  after  his  decease,  to  such  persons  as  Bhould 

be  hi-  heir-,  the  intent  would  not  be  more  obvious.      For  pur| 

of  reaching  the  like  end  he  covenanted  to  stand  seised  t<>  lie  use 
<»f   In-  heirs. 

John  Carson  aid  Nancy  McFadden  were  children  of  William, 
who  also  had  two  other  children  by  his  second  wile.  That  nat- 
ural love  and  affection  of  the  parties  to  this  '\^^\,  for  the  other 
children,  likewise  moved  them  to  so  stipulate,  i-  manifesl  from 
the  relationship;  and  were  sucb  motive  accessary,  it  is  nol  essen- 
tial that  it  be  expressed:  Fisher  v.  Strickler,  LO  Barr.  348.  Lit- 
tle need  be  predicated  of  this  farther  than  showing  one  objeel  of 
the  covenantees  was  prevention  of  the  ?erj>  thing  attempted  upon 
the  plaintiff. 


416  FORM,   NATURE,   AND   SCOPE   OF  WILLS. 

William  Carson  died  seised  of  the  land,  and  the  devisees  stand 
in  his  shoes.  They  are  not  innocent  third  persons.  Had  he  died 
intestate  his  heirs  could  not  violate  the  contract ;  no  matter  if  the 
deed  is  not,  in  strictness,  within  the  statute  of  Uses  and  Trusts, 
27  Hen.  8,  and  the  conveyances  which  sprung  up  in  consequence 
thereof.  The  consideration  was  not  money,  necessary  to  a  bar- 
gain and  sale,  nor  blood  or  marriage,  necessary  to  a  covenant  to 
stand  seised  to  uses  ;  but  it  was  a  valuable  one,  and  between  the 
parties  and  privies,  sufficient  to  support  a  contract  to  hold  the 
land  for  use  of  his  heirs,  their  possession  to  commence  at  his 
death.  Each  party,  equitably  interested,  can  recover  his  portion, 
in  his  own  name,  and  is  not  bound  to  resort  to  a  personal  action 
for  damages. 

Judgment  reversed,  and  judgment  is  now  entered  for  the  plain- 
tiff  upon  the  verdict. 

ORAL  AGREEMENT  TO  DEVISE.— STATUTE  OF  FRAUDS. 
Mary  Gould  vs.  Edward  Mansfield  and  others. 

Massachusetts  Supreme  Judicial  Court,  1869. 
(103  Mass.  408.) 

Chapman,  C.  J.— The  bill  states,  in  substance,  an  oral  agree- 
ment between  the  plaintiff  and  Nancy  Gould,  deceased,  the  tes- 
tatrix of  the  defendant  executors,  the  purport  of  which  was,  that 
each  of  them  should  make  a  will  in  the  other's  favor,  and  give 
and  devise  thereby  all  her  property,  both  real  and  personal,  to 
the  other,  and  that  neither  of  them  was  to  make  any  different  will 
at  any  time,  or  to  dispose  of  her  property  in  any  different  manner 
therefrom.  The  plaintiff  alleges  that  the  said  Nancy  did  make 
her  will  accordingly,  and  informed  the  plaintiff  thereof,  and  there- 
upon the  plaintiff  made  her  will  in  accordance  with  the  agree- 
ment, and  did  not  revoke  it  during  Nancy's  lifetime,  or  make  any 
different  will ;  that  Nancy  stated  the  agreement  to  divers  persons 
during  her  lifetime ;  that  the  plaintiff  performed  services  for 
Nancy,  and  expended  money  for  her,  under  the  belief  that  such  a 
will  existed ;  but  that  Nancy  made  another  will,  which  has  been 
proved  and  allowed,  giving  her  property  to  others.  The  wills 
were  to  be  of  all  the  real  and  personal  property  which  they  had, 
but  no  property  is  mentioned  as  being  included  in  them  except  a 


ORAL  AGREEMENT  TO  DEVISE.— STATUTE  OF  FRAUDS.    417 

house,  which  they  owned  in  common,  and  in  which  they  lived  to- 
gether. The  personal  estate,  if  any,  seems  to  have  been  of  minor 
importance,  and  the  agreement  in  respect  to  it  is  not  divisible 
from  that  relating  to  the  real  estate. 

Among  other  defences  set  up,  the  statute  of  frauds  is  pleaded, 
and  it  is  contended  by  the  defendants  that  this  was  a  contract  for 
the  sale  of  lands  within  that  statute.  On  the  contrary,  the 
plaintiff  denies  that  it  is  a  contract  for  a  sale  within  the  stat- 
ute. 

If  we  look  at  the  character  of  the  act  to  be  done,  we  find  that 
a  will  is  considered  in  the  nature  of  a  conveyance  by  way  of  ap- 
pointment. Barwood  v.  Groodright,  Cowp.  87,  90.  "It  doth  as 
effectually  give  and  transfer  estates,  and  alter  the  property  of  lands  . 
and  goods,  as  acts  executed  by  deeds  in  the  lifetime  of  the  par- 
ties." 1  Shep.  Touch.  402.  A  devisee  comes  within  the  legal 
definition  of  one  who  takes  by  purchase.  Watkins  on  Descents, 
155.  And  the  contract  set  forth  in  the  bill  is  a  contract  to  convey, 
by  the  act  alleged,  a  title  in  fee  simple  to  lands  for  a  considera- 
tion. In  Harder  v.  Haider,  2  Sandf.  Ch.  17,  such  a  contract  was 
held  to  be  within  the  statute  of  frauds;  and  in  Walpole  v.  Or- 
ford,  3  Yes.  402,  Lord  Chancellor  Loughborough  so  regarded 
it.  See  also  Browne  on  St.  of  Frauds  (3d  ed.),  sec.  203.  In  the 
recent  case  of  Caton  v.  Caton,  Law  Rep.  1  Ch.  137,  and  2  BL.  L. 
127,  the  same  doctrine  was  held.  We  see  no  ground  to  differ 
from  th<-se  authorities,  and  must  regard  it  as  a  contract  for  the 
sale  of  lands,  within  the  statute  of  frauds. 

There  has  been  no  part  performance  which  amounts  to  anything. 
The  plaintiff  says  she  made  a  will  devising  her  property  to  Nancy. 
Bui  such  an  instrument  was  ambulatory, and  might  have  been  re 
voked  by  various  acts,  or  by  implication  of  law  from  subsequenl 
changes  in  the  condition  or  circumstances  of  the  testator.  Gen. 
St-.,  c.  '.'i'.  sec.  II.  The  plaintiff's  property  is  still,  as  it  has 
always  been,  in  her  own  handstand  subjeel  to  her  own  control. 
Th<-  services  rendered  and  money  paid  by  the  plain  till  are  not 
alleged  to  have  been  in  part  performance  oi  the  contract. 

It  is  unnecessary  to  consider  the  provision  o1  the  statute    >l 
frauds  as  to  tin-  personal  property,  it  being  indivisible  from  the 
real  estate  in  reaped  to  the  alleged  contract,  if  indeed  there  be 
such  property  of  any  considerable  value. 
27 


418  FORM,   NATURE,   AND   SCOPE   OF   WILLS. 

These  views  being  fatal  to  the  plaintiffs  case,  it  is  not  neces- 
sary to  decide  the  other  questions  discussed. 

Demurrer  sustained. 

[To  the  same  point,  Manning  v.  Pippen  (Ala.),  11  So.  Rep.  56  ; 
Ellis  v.  Gary,  71  Wis.  176.  Also  cases  cited  in  note  in  66  Am. 
Dec.  788.] 

Until  lately  an  oral  agreement  founded  on  a  sufficient  con- 
sideration to  make  a  certain  provision  by  way  of  legacy  by  will 
for  a  particular  person  was  valid  in  Massachusetts.  Wellington 
v.  Apthorp,  145  Mass.  69.  But  now  by  statute  such  an  agree- 
ment to  be  valid  must  be  in  writing,  and  signed.  Krell  v.  Cod- 
man>  154  Mass.  454. 

EXECUTED  CONTRACT  TO  DEVISE. 
Tuit  v.  Smith. 

Pennsylvania  Supreme  Court,  1890. 
(137  Penn.  St.  35.) 
Appeal  from  Court  of  Common  Fleas. 

Sterrett,  J. — Both  parties  to  this  action  of  ejectment  claim 
under  Sarah  Smith,  who  purchased  the  house  and  lot  in  con- 
troversy in  October,  1884,  and,  in  consideration  of  plaintiffs 
agreement  to  support  and  maintain  her  during  life,  etc.,  conveyed 
the  same  to  him  by  deed  dated  August  29,  1885.  The  record  of 
that  deed,  together  with  plaintiffs  agreement  and  bond  of  even 
date  therewith,  was  given  in  evidence,  and  relied  on  by  him  as 
evidence  of  title  and  right  of  possession.  The  defendant,  on  the 
other  hand,  relied  on  a  prior  contract,  of  a  somewhat  similar 
nature,  between  Mrs.  Smith  and  himself,  not  in  the  form  of  a 
conveyance  or  agreement  to  convey  the  property  in  controversy 
to  him,  but  evidenced  by  a  testamentary  paper  executed  by  her 
in  October,  1884,  wherein  she  devised  the  house  and  lot  to  de- 
fendant, "  for  his  kindness  and  care  toward  me  in  sickness  and  in 
health,  in  watchfulness  and  care  during  all  my  natural  life,  and  at 
my  decease  the  aforesaid  property  shall  belong  to  the  said  Laura 
E.  Smith,  his  heirs  or  assigns,  with  all  rights,  liberties,  and  hered- 
itaments forever.  ...  It  is  my  will  and  desire  that  the  said 
Laura  E.  Smith  have  possession  of  my  house  on  the  first  day  of 


EXECUTED   CONTRACT   TO   DEVISE.  419 

November,  1884,  and  he  take  me  with  him,  and  that  he  take  eare 
of  me  as  one  of  his  own  family."  It  was  admitted  that,  in  pur- 
suance of  what  is  contained  in  the  paper,  and  in  accordance  with 
the  mutual  understanding  and  agreement  of  both  parties,  the  de- 
fendant went  into  possession,  and  took  Mrs.  Smith  with  him  as  a 
member  of  his  family.  She  selected  her  rooms  in  the  house. 
They  were  comfortably  fitted  up  for  her,  partly  with  her  own 
furniture  which  she  had  before,  and  partly  with  furniture  pro- 
cured by  defendant.  She  remained  there  as  a  member  of  the 
family  until  the  following  September,  and  then  left  without  as- 
signing any  satisfactory  cause  for  so  doing. 

When  this  case  was  here  in  1889,  it  was  held,  in  an  opinion  by 
our  Brother  Green,  that  the  testamentary  paper  above  referred 
to  might  operate  as  a  memorandum  of  contract  for  the  sale  of  land 
sufficient  to  comply  with  the  statute  of  frauds,  and,  as  such,  it 
was  admissible  in  evidence  during  the  lifetime  of  the  testator; 
that  such  a  paper,  without  evidence  of  anything  done  under  it  by 
the  devisee,  cannot  be  treated  as  anything  more  than  a  will,  re- 
vocable at  the  pleasure  of  the  testator;  but,  when  the  testator 
has  put  the  devisee  in  possession  of  the  land,  and  the  latter  has 
complied  with  his  part  of  the  agreement,  the  devise  loses  its 
revocability,  and  must  be  treated  as  an  executed  contract.  127 
Pa.  St.  341,  17  Atl.  Rep.  995.  The  defendant  on  this  trial, 
undertook  to  prove, and  did  successfully  show,  that  he  was  put  in 
possession  of  the  property  in  controversy  by  Mr-.  Smith,  and  that 
he  substantially  complied  with  his  part  of  the  contract  by  taking 
her  with  him  and  caring  for  her  ;"  as  one  of  his  own  family."  The 
plaintiff  undertook  to  rebut  the  evidence  thus  introduced  by  de- 
fendant, but,  aside  from  showing  some  slight  annoyances  and  in- 
conveniences, BUch  as  are  likely  to  occur  in  any  ordinary  family, 
the  case  was  not  successfully  assailed.  Mrs.  Sarah  Smith,  the 
old  lady  who  conveyed  the  property  to  plaintiff,  was  his  main 
witness,  and.  assuming  her  testimony  to  be  true,  there  is  nothing 
in  it  to  justify  her  in  rescinding  the  contract  with  the  defendant, 
and  on  the  faith  of  which  he  expended  nev  in  the  improve- 
ment of  the  property.  The  witness  wa6  '.(l1  years  old,  and  testi- 
fied in  a  rambling  and  incoherent  manner,  such  as  mighl  be  ex- 
pected in  one  of  her  advanced  years.  In  answer  to  the  question, 
u  How  did  the  defendant  treat  you  while  you  were  staying  with 


420  FORM,   NATURE,   AND   SCOPE   OF  WILLS. 

them  ?  "  her  answer  was  :  "  "Well,  only  sometimes  he  would  take 
a  spurt  in  ugliness;  have  a  bad  word,  you  know.  He  was  just 
middling.  I  suppose  he  done  the  best  he  knew  how."  Again, 
in  answer  to  the  question  whether  defendant's  wife  abused  her, 
she  said  :  "  Oh,  no,  not  particularly,  any  more  than  she  wasn't 
very  much  of  a  talker  of  a  woman,  nor  she  didn't  quarrel,  nor 
nothing  of  the  kind."  Again,  in  answer  to  the  question  whether 
the  defendant  offered  to  strike  her,  her  reply  was  :  "  Oh,  no.  If 
he  had,  he  would  have  got  a  black  nose." 

Without  referring  at  length  to  the  plaintiff's  rebutting  evi- 
dence, it  is  sufficient  to  say  that  there  appears  to  be  nothing  in 
any  of  it  that  would  justify  a  rescission  of  the  contract  in  pur- 
suance of  which  defendant  was  put  in  possession  of  the  premises 
in  controversy.  In  view  of  the  insufficiency  of  plaintiff's  rebut- 
ting testimony,  the  court,  in  defendant's  first  point  for  charge, 
was  requested  to  instruct  the  jury  "  that  the  plaintiff  had  shown 
no  facts  which  would  justify  Sarah  Smith  in  rescinding  the  con- 
tract contained  in  her  will,  and  therefore  he  cannot  recover." 
"We  think  this  point  should  have  been  affirmed.  The  plaintiff 
was  certainly  in  no  better  position  than  Mrs.  Smith  would  have 
been  if  she  had  brought  the  action  herself,  without  having  con- 
veyed the  property.  The  case  may  be  regarded  as  a  close 
one,  but,  on  a  careful  review  of  the  evidence,  we  are  of  opinion 
that  it  should  not  have  been  submitted  to  the  jury.  Judgment 
reversed. 

[The  theory  on  which  relief  in  equity  is  afforded  in  cases  like 
those  already  illustrated,  is  that  while  the  heirs,  or  devisees,  or 
grantees  with  notice,  as  the  case  may  be,  have  the  legal  title, 
they  are  to  be  regarded  as  trustees  for  the  benefit  of  the  person 
entitled  under  the  contract,  and  held  to  account  accordingly,  by 
such  equitable  methods  as  may  best  suit  the  situation.  Sumner 
v.  Crane  (Mass.),  29  N".  E.  Kep.  1151 ;  note  in  66  Am.  Dec.  788. 
For  further  general  cases  see  Hudson  v.  Hudson  (Ga.),  13  S.  E. 
Kep.  583 ;  Keagle  v.  Pessell  (Mich.),  52  N.  W.  Kep..58,  and  Drake 
v.  Lanning  (N.  J.),  24  Atl.  Rep.  378.  For  an  illustration  and 
discussion  of  special  relief  in  equity  where  specific  performance 
could  not  be  enforced,  see  Johnson  v.  Hubbell,  10  N.  J.  Eq.  332.] 


JOINT,  DOUBLE,  ALTERNATIVE,  AND  DUPLICATE  WILLS.    421 


IV.    JOINT.  SIMULTANEOUS,  DOUBLE,  ALTERNATIVE,  AND 

DUPLICATE  WILLS. 

JOINT    WILL.' 

In  the  Goods  of  Letitia  Lovegrove,  Spinster  (deceased), 

on  Motion. 

English  Court  of  Probate,  1862 
(2  Sw.  &  Tr.  453.) 
In  this  ease  the  deceased,  Letitia  Lovegrove,  died  on  the  18th 
of  June,  1861,  leaving  the  following  testamentary  paper: 

"Peckham,  January,  1858. 
••  We,  Hannah  Lovegrove  and  Letitia  Lovegrove,  at  present 
living  at  No.  8,  Pitt  Street,  Peckham,  being  desirous  that,  as  we 
are  now  living  mutually  together  upon  the  joint  savings  of  each 
other,  at  the  death  of  either,  whichever  it  may  please  Almighty 
God  to  take  first,  the  survivor  should  have  all  that  remains,  and 
we  further  desire  that  at  the  death  of  the  said  survivor,  should 
there  be  any  money  left  at  her  decease,  we  wish  it  to  be  divided 
between  our  nephews  and  niece  hereinafter  named. 

"  Signed  in  the  presence  of  each  other  and  of  both  the  under- 
signed. 

"  Hanxaii  Lovegrove,  X  her  mark. 

"  Letitia  Lovegrove,  X  ner  mark. 
"  Witnesses, 

"Mart  Nicholson,  X  her  mark. 

"  Elizabeth  Ash." 

From  tli''  affidavit  of  John  Lovegrove,  it  appeared  that  Hannah 
Lovegrove  died  in  April,  1858. 

I)i:.  Swdbey  moved  for  letters  of  administration  with  the  will 
annexed,  as  the  last  will  of  Letitia  Lovegrove,  spinster,  to  be 
granted  to  John  Lovegrove,  her  lawful  nephew,  and  one  oi  her 
next  of  kin,  and  one  of  the  persons  entitled  to  the  residue  of 
her  personal  estate  undisposed  of  by  the  said  will.     In  Bobson  v. 

1  Joint  wills  arc  properly  such  as  either  dispose  of  a  joinl  estate  or  make  a 
Joint  disposition  of  property  held  separately.    Bee  "  Double  w  ills."  pott, 


422  FORM,   NATURE,   AND   SCOPE   OF   WILLS. 

Blackburn  and  Blackburn,  1  Add.  274,  it  appears  that  a  similar 
paper  was  proved  as  the  will  of  Joshua  Hobson  (who  was  in  that 
case  the  first  of  the  mutual  testators  who  died),  he  having  died 
without  having  altered  or  revoked  his  part  thereof.1  In  the  pres- 
ent case  the  survivor  has  died  without  altering  or  revoking  her 
part  of  the  document,  which  is,  whatever  its  effect  may  be,  her 
will. 

In  the  Goods  of  Stacey,  Deane  6,  and  In  the  Goods  of  Joseph 
Raine,  1  Swab.  &.  Trist.  144,  were  also  cited. 

Cur.  adv.  vult. 

Sir  C.  Cresswell :  I  think  in  this  case  the  precedent  cited  war- 
rants the  grant  prayed. 

JOINT   WILL  CONDITIONED  ON   SIMULTANEOUS  DEATH. 
In  the  Goods  of  Hugo. 

High  Court  of  Justice,  Probate  Division,  1877. 
(2  P.  D.  73.) 

The  Reverend  Thomas  Hugo,  of  the  Rectory,  West  Hackney, 
Middlesex,  died  on  the  31st  of  December,  1876,  leaving  a  wTidow, 
and  three  sisters  surviving  him.  On  the  15th  of  March,  1864,  he 
duly  executed  his  will  on  a  lithographed  form,  by  which  he  left 
his  whole  property,  real  and  personal,  to  his  wife  absolutely,  and 
appointed  her  sole  executrix.  On  the  12th  of  October,  18T4,  he 
and  his  wife  duly  executed  a  joint  will,  which  commenced  :  "  This 
is  the  last  will  and  testament  of  us,  Thomas  Hugo  and  Agnes 
Jane  Hugo,  his  wife,  residing  at  the  Rectory  House,  West  Hack- 
ney, in  case  we  should  be  called  out  of  this  world  at  one  and  the 
same  time  and  by  one  and  the  same  accident."  This  instrument 
by  its  terms  revoked  all  former  wills.  It  appeared,  from  the 
affidavit  of  Mrs.  Hugo,  that,  in  the  month  of  October,  1874,  her 
husband  and  herself  were  about  to  make  a  railway  journey,  and 
there  having  been  then  very  recently  a  serious  railway  accident, 
they  agreed  to  make  a  joint  will,  to  take  effect  in  the  event  of 
their  meeting  with  such  an  accident,  and  both  being  killed  at  the 
same  time,  which  accordingly  her  husband  wrote  out.  They, 
however,  returned  home  in  safety.     After  the  death  of  the  de- 


1  [Also  Matter  of  Diez,  50  N.  Y.  88  ;  In  the  Goods  of  Hugo,  2  P.  D.  73.] 


SEPARATE   SIMULTANEOUS    WILLS.  423 

ceased,  the  joint  will  was  found  loose  amongst  other  papers. 
The  executors  of  the  joint  will  and  the  sisters  of  the  deceased 
consented  that  probate  should  be  granted  of  the  will  of  the  15th 
of  March,  1S64. 

Dr.  Swabey  moved  accordingly. 

Sir  J.  llannen  (President).  (After  considering  the  bearing  of 
a  case  cited.)  Now,  the  question  I  have  to  consider  is,  whether 
this  instrument  ought  to  be  admitted  to  probate  at  all  as  the  will 
of  the  testator.  To  determine  that  I  must  see  whether  or  not  the 
bequests  are  left  absolutely  or  only  conditionally.  The  words 
are.  "  This  is  the  last  will  and  testament  of  us,  etc.,  in  case  we 
should  be  called  out  of  this  world  at  one  and  the  same  time  and 
by  one  and  the  same  accident."  The  condition  did  not  happen, 
and  I  consider,  therefore,  the  will  is  inoperative.  The  same 
question  was  before  the  court  on  two  occasions,  In  the  Goods  of 
Winn,1  and  in  Roberts  v.  Roberts.2  In  the  last  ease  the 
testator  executed  the  paper  lest  anything  should  happen  to  him 
on  his  passage  to  Wales,  or  during  his  stay  there.  He  returned 
from  that  trip,  and  the  court  held  that  the  paper  was  conditional, 
and  on  that  ground  pronounced  against  it.  The  observation  of 
counsel  that  if  the  will  be  conditional  the  condition  must  attach 
to  the  whole  document,  is,  I  think,  well  founded,  and  therefore, 
when  the  testator  revoked  all  former  wills,  he  only  did  so  subject 
to  the  happening  of  the  contingency.  I  decree  probate  of  the 
will  of  March,  L864. 

SEPARATE  SIMULTANEOUS   WILLS. 
in  Hie  Goods  of  Callaway. 

High  Couxw  of  Justice,  Probate  Division,  1890. 
(l:,  I'.   I>.  117.) 

The  Bight  Rev.  Benry  Callaway,  late  Bishop  of  St.  John's, 
Caffraria,  died  March  -J''-.  L890,  at  Ottery  St.  Man,  in  the  county 
of  Devon,  on  January  17,  L888,  being  then  residenl  in  this 
country,  and  ha\  ing  resigned  his  bishopric,  In'  made  two  wills,  one 
disposing  of  hie  property  in  England,  and  the  other  disposing  ol 
his  property  in  South  Africa.     The  English  will  commenced  in 

'  2  Sw.  &  Tr    It;  3  -  ■'.    &  Tr  ::::;  ;  I..  •■    (P    M    &  A     W, 


424  FORM,   NATURE,   AND   SCOPE   OF   WILLS. 

these  terms :  "  This  is  to  be  my  last  will  and  testament  so  far  only 
as  respects  my  real  and  leasehold  estate  and  my  personal  estate 
and  bona  notabilia  in  the  United  Kingdom  of  Great  Britain  and 
Ireland,  and  is  not  intended  in  any  way  to  operate  as  disposing  of 
my  personal  and  real  estate  in  South  Africa  or  elsewhere  than  in 
the  said  United  Kingdom,  as  to  which  I  have  made  a  separate  and 
independent  will  dated  on  the  same  day  as  this,  and  therein  called 
my  African  Will."  In  the  South  African  will  the  testator  said, 
"  i  declare  this  to  be  my  last  will  and  testament  except  as  to  such 
real,  leasehold,  or  personal  estate,  if  any,  as  may  be  situate  in 
Great  Britain."'' 

This  will  had  been  sent  to  South  Africa  to  be  proved ;  but  on 
the  executors  of  the  English  will  taking  it  into  the  Principal  [Reg- 
istry for  Probate,  the  registrar  refused  probate  unless  the  South 
African  will  were  brought  in. 

B.  Deane  moved  for. probate  of  the  English  will  alone  to  be 
granted  to  the  executors,  without  calling  on  them  to  bring  in  the 
South  African  will,  and  stated  that  all  the  next-of-kin  consented 
to  this  course.  He  referred  to  In  the  Goods  of  Coode,1  In  the 
Goods  of  Smart,2  and  In  the  Goods  of  Astor.3 

Butt,  J. — I  think  I  can  do  for  you  what  appears  to  have  been 
done  in  that  last  case.  I  will  direct  that  probate  may  be  issued  of 
the  English  will  alone  to  the  executors  named  therein  ;  but  an 
affidavit  must  be  filed  exhibiting  an  attested  copy  of  the  South 
African  will,  and  that  affidavit  must  be  referred  to  in  the  probate 
as  having  been  filed. 

DOUBLE   WILLS. 

Sometimes  two  testators  may  execute  one  common  testamentaiy 
instrument,  each  disposing  of  his  property  to  the  other  according 
as  one  or  the  other  mav  be  the  first  to  die,  with  or  without  fur- 
ther  gifts  over  in  remainder.  Such  wills  are  sometimes  called 
"  Reciprocal "  or  "  Double  "  wills.  They  differ  from  joint  wills 
in  that  they  neither  dispose  of  joint  property,  nor  effect  a  joint 
disposition.  An  illustration  may  be  found  in  Re  Cawley's  Estate 
(Penn.),  20  Atlantic  Reporter  567,  where,  in  the  opinion,  many 
cases  are  cited  and  discussed. 


1  Law  Rep.  1  P.  &  D.  449.  2  9  P.  D.  64.  3  1  P.  D.  150. 


INCORPORATION    BY    REFERENCE.  42.") 

ALTERNATIVE    WILL>. 

Illustration. 

James  Hamilton,  the  testator,  executed  one  will  in  1871,  and 
another  in  January,  1>73.  By  a  codicil  to  the  latter,  he  provided 
that  if  he  should  die  before  March  1st,  1S73,  the  will  of  1871 
should  take  effect;  otherwise,  the  will  of  1873.  In  fact,  he  died 
before  March  1st,  1873,  and,  therefore,  the  will  of  1871  was  his 
last  will.1 

DUPLICATE   WILLS. 

Wills  may  be  executed  in  duplicate."  Only  one  of  the  dupli- 
cates should  be  admitted  to  probate.3  Revocation  by  testator  of 
one,  aiiium  revocandi,  revokes  the  will.4  Whether  testator  had 
both,  or  only  one,  in  his  possession  ;  and  also  the  careful  preserva- 
tion by  testator  of  one,  though  the  other  is  partially  mutilated, 
are  facts  bearing  on  the  question  of  intent/  And  the  fact  that 
the  one  copy  in  testator's  possession  cannot  be  found  at  his  death, 
raises  a  jJ'4'"1"  facie  presumption  that  testator  destroyed  it,  and 
so  revoked  both.0 

V.  INCORPORATION  BY  REFERENCE. 

It  is  not  essential  that  all  portions  of  a  will  should  be  fastened 
together  in  one  document.  The  fact  that  thev  are  not  so  fastened 
is  likely  t<>  lead  to  confusion  and  doubt,  but  the  actual  make-up  of 
the  will  when  executed  may  nevertheless  be  shown  by  both  in- 
trinsic  and  extrinsic  evidence.  So  also  it  is  sufficient  if  the  parts 
are  only  loosely  attached,  as,  for  instance,  with  a  pin.7  And  if 
they  are,  at  testator's  death,  found  to  he  in  fact   fastened  together 

in  any  way,  the  prima  facie  presumption  is  that   it  was  (lone   by 

the  testator  before  execution.' 

Sometimes  outside  papers  and  documents  are,  as   the  saying   is, 

1  Hamilton's  Estate,  71  Penn.  St.  69;  Bradish  v.  McClellan,  LOO  Penn,  Si.  807. 
'  Hubbard  v.  Alexander,  L.  R.  ::  Oh.  Div.  7:is;  n,,,.  .1.  Strickland  v.  Btricli 
lun. I,  6  C.  I'..  724  (745). 

man  v.  ( 'rossman,  90  N.  Y .  1 1.">. 
4  Onions  v.  Tyrer,  l  P.  Wmt    848. 

1  Pemberton  v.  Pemberton,  18  Ve  ,  890  (810);  Roberta  v.  Round,  :'•  Hagg  548. 
I    .ivin  v.  I  J  Hagg.  366  "  In  Goods  of  Braddock,  I  P  i»    188. 

•  Bees  v.  Reea,  L  i:  8  P.  &  D.  84 


426  FORM,   NATURE,    AND   SCOPE   OF   WILLS. 

incorporated  into  the  will  by  reference.  This  is,  in  fact,  what  oc- 
curs when,  for  instance,  a  previous  will,  not  duly  executed,  is  re- 
vived and  republished  by  suitable  reference  in  a  succeeding  codicil. 
And  the  general  rule  is  that  any  paper  or  document  may  be  in- 
corporated by  proper  reference.1 

In  order  to  incorporate  a  paper  in  a  will  by  reference,  two 
things  are  strictly  necessary. 

1.  That  it  must  be  clearly  designated  by  the  description  given 
of  it  in  the  will,  as  a  then  existing  paper." 

2.  That  it  must  be  shown  to  have  been  in  existence  at  the  time 
when  the  will  was  executed,  and  must  be  identified.3 


VI.    ILLEGAL    PROVISIONS,     AND    INCAPABLE 
BENEFICIARIES. 

Although,  as  already  stated  in  the  Introduction,  the  old  general 
restrictions  on  the  testamentary  right  are  now  removed,  so  that 
every  competent  testator  may  make  such  disposition  as  he  pleases 
of  his  property  by  will,  yet  the  law  still  imposes,  sometimes  by 
force  of  general  principles,  and  sometimes  by  statute,  some  special 
limits  beyond  which  no  one  can  go. 

These  restrictions  may  be  broadly  classified  in  two  general 
groups.  The  first  covers  certain  classes  of  forbidden  provisions, 
and  the  second  covers  certain  classes  of  persons  for  whose  benefit 
testamentary  provisions  either  may  not  be  made  at  all,  or  may  not 
be  made  in  excess  of  certain  defined  limits.  Each  subdivision  of 
these  classes  belongs  to  one  or  more  independent  branches  of  the 
law  distinct  from  that  of  wills,  but  it  will  be  convenient  to  here 
summarize  the  more  important  and  usual  examples. 

1  Newton  v.  Seaman's  Friend  Soc'y,  130  Mass.  91  ;  1  Jarman  on  Wills,  89. 
In  New  York  it  is  held  that  no  outside  paper  which  is  testamentary  in  character 
can  be  thus  incorporated.  Booth  v.  Baptist  Church,  126  N.  Y.  215  ;  with 
which  last  case,  however,  should  be  compared  that  of  Brown  v.  Clark,  77 
N.  Y.  369  (377). 

•  In  Goods  of  Kehoe,  13  L.  R.  dr.)  13  ;  1  Jarman  on  Wills  (4th  Eng.  Ed.; 
Randolph  &  T.'s  Am.  Ed.),  90,  and  note  (s). 

3  Singleton  v.  Tomlinson,  L.  R.  3  App.  Cas.  404.  Parol  evidence  is  ad- 
missible to  identify  the  paper  thus  distinctly  referred  to.  In  re  Almosnino, 
29  L.  J.  Pr.  46. 


WHO   CANNOT   BE   BENEFICIARIES.  427 

I.    WHAT    PROVISIONS    CANNOT   BE    MADE. 

Under  this  head  will  be  considered  dispositions  forbidden  or 
illegal  on  their  own  account  irrespective  of  the  personality  or 
capacity  of  the  proposed  beneficiary. 

1.  Perpetuities,  and  similar  schemes  usually  classified,  with 
greater  or  less  accuracy,  under  this  head.1 

2.  Devises  and  legacies  to  charity. — It  is  very  common  to  place 
statutory  restrictions  upon  such  provisions  either  by  way  of  limit- 
ing outright  the  proportionate  amount  which  any  testator  may  thus 
dispose  of,  or  by  rendering  all  gifts  of  this  character  invalid  un- 
less the  will  is  executed  at  least  a  certain  specified  time  before 
testator's  death." 

3.  Provisions  contrary  to  public  policy. — Here  if  a  gift  is  pro- 
vided subject  to  a  condition  hostile  to  public  policy,  the  gift  is 
good  and  the  condition  is  disregarded.3  The  testator's  power  to 
make  the  proposed  gift  is  thus  not  interfered  with,  but  only  his 
power  to  make  it  on  such  a  condition. 

[A  clear  exposition  of  the  law  bearing  on  a  gift  subject  to  a 
condition  that  the  beneficiary  should  desert  his  lawful  wife,  will 
be  found  in  llawke  v.  Euyart  (Neb.),  46  N.  W.  Rep.  422.] 

4.  Doiver;  Curtesy. — According  to  the  common  law,  and  in 
many  of  our  States,  a  testator  cannot  by  will  cut  off  his  wife's 
right  of  dower,  and  a  testatrix  cannot  by  will  cut  off"  her  hus- 
band's right  of  curtesy.4     This  rule  is  not  now  universal.6 

II.    who   CANNOT    BE    BENEFIC1  MMK-. 

1.  Alieit8.—A.\  the  COminon  law.  an  alien  could  take  land  by 
devise,  and  could  hold  a-  against  all  but  the  State,  and  even  against 

Gray's  Rule  against   Perpetuities;  Chaplin  on  Buspension  of  the  Power  of 
Alienation;  Gray1    Restraints  on  Alienation. 

\.  V.  I..  I860,  Oh.  860,  ;'  1  ;  L.  L848,  Ch.  819,  :'  6, 

<  >n  tin-   ubjecl  of  testan*  atary  provisions  in  restraint  <>f  marriage,  and  the 
various  distinctions  raised  by  tin'  decisions,  Bee  a  lull  di  cu    Ion  In  '  Jarm,  on 
Wills,  )  1.    As  to  other  conditions,  Bee  2  Jarman  en  Wills,  eh.  w\ii.   Condition 
not  n.  dispute  the  '.'.ill.  Schouler  on  Will-,  sec.  605. 
4  2  Blacksl    Comm.,  126  et  seg.,  129  ei  seq, 

■  Dower  and  Curtesy,  Oal.  Civil  Code,  .'  L78 ;  Ourte  y,  Gerard  en  Titles  to 
Real  Estate,  166. 


42S  FORM,   NATURE,   AND   SCOPE   OF   WILLS. 

the  State  until  office  found.1  The  laws  of  our  States  vary  among 
themselves  on  this  subject,  and  it  would  hardly  be  appropriate 
here  to  attempt  to  summarize  them  all.2 

2.  Corporations. — At  the  common  law,  corporations  were  ex- 
cepted out  of  the  original  Statute  of  Wills,  so  that  no  devise  of 
land  to  a  corporation  by  will  was  good,  except  for  charitable  uses, 
by  the  statute  43  Eliz.,  c.  4,  which  was  narrowed  by  the  statute 
9  Geo.  II.,  c.  36. 3  But  they  might  take  personal  property  freely 
by  bequest,  except  as  restricted  by  their  charters.4  Here,  also, 
the  statutes  of  our  States  vary  widely,  and  the  local  law  should  in 
each  case  be  consulted. 

3.^  Subscribing  witnesses. — As  has  been  already  seen,  our  stat- 
utes often  render  provisions  for  witnesses  void  in  order  to  make 
the  witnesses  competent.5  The  particular  law  governing  each 
case,  and  its  bearing  on  the  validity  of  provisions  for  witnesses, 
must  be  Bought  in  the  local  statutes. 

4.  Beneficiaries  incompetent  from  public  policy . — In  addition 
to  the  cases  above  referred  to  under  I.  3,  where  the  conditions  im- 
posed upon  a  gift  itself  were  deemed  contrary  to  public  policy,  as, 
a  gift  in  restraint  of  marriage,  irrespective  of  the  particular  bene- 
ficiary, there  are  special  cases  where  the  standing  of  the  beneficiary 
is  such  as  to  render  the  approval  of  any  provision  for  him,  in  par- 
ticular, contrary  to  public  policy.  Such,  for  example,  is  the  case 
of  a  beneficiary  who  murders  the  testator,"  and,  as  held  in  Penn- 
sylvania, a  devise  to  an  "  Infidel  Society."  7  It  will  also  be  noticed 
that  the  other  restrictions  already  mentioned,  on  testamentary  gifts 
to  corporations,  on  perpetuities,  on  gifts  to  charity,  and  to  sub- 
scribing witnesses,  and  also  those  protecting  the  right  of  dower 


1  Fairfax  v.  Hunter,  7  Cranch  603.  As  to  personal  property,  see  1  Blackst. 
Comm.  372. 

2  See  Prof.  Chase's  note,  1  Blackst.  Comm.  372;  Jarman  on  "Wills  (Randolph 
&  T.'s  Am.  Ed.)  185,  and  note.' 

3  1  Blackst.  Comm.  479.  For  the  present  English  law,  see  the  statute  1  Vict., 
c.  26;  1  Jarm.  on  Wills,  65,  66. 

4  Schouler  on  Wills,  sec.  24.  6  Ante,  p.  293. 

6  Riggs  v.  Palmer,  115  N.  Y.  506. 

7  Zeisweiss  v.  James,  63  Penn.  St.  463,  where,  however,  the  fact  that  the 
society  was  yet  unincorporated  and  would  probably  not  be  incorporated  by  the 
Legislature,  played  some  part. 


NUNCUPATIVE   WILLS.  429 

and  curtesy,  arise,  either  wholly  or  in  part,  from  regard  for  the 
claims  of  public  policy  either  in  its  general  scope  or  in  its  particu- 
lar application.  But  they  also,  whatever  the  original  ground  of 
their  existence,  depend  wholly,  or  chiefly,  on  explicit  statutes, 
leaving  to  the  courts  the  duty  of  applying  to  cases  not  covered  by 
statute  the  general  principles  of  the  law  of  public  policy  when- 
ever properly  applicable. 

[The  case  of  Riggs  v.  Palmer,  cited  in  note  6,  p.  428,  contains 
two  elaborate  opinions  on  opposing  sides  of  the  question.  Com- 
pare Owens  v.  Owens,  100  X.  C.  240.] 

VII.   NUNCUPATIVE  WILLS. 

In  discussing  nuncupative,  or  oral,  wills,  three  periods  should 
be  considered.1 

The  first ]_><,'* <,il  is  that  preceding  29  Charles  II.,  during  which 
time  any  person  might  make  a  valid  oral  declaration  of  his  testa- 
mentary wishes.  This  privilege  was  confined,  at  any  rate  during 
the  latter  part  of  the  period,  and  as  a  general  rule,  to  cases  where 
the  testator  was  in  extremis? 

The  second  period  begins  with  the  passage  of  the  Statute  of 
Frauds  (29  Charles  II.,  1670).  This  provided  that  a  nuncupative 
will,  to  be  valid,  (1)  must  be  made  in  the  testator's  last  sickness, 
in  his  own  habitation  or  dwelling-house,  or  where  he  had  been 
previously  resident  ten  days  at  the  least,  except  he  be  surprised 
with  Bickness  on  a  journey,  or  from  home,  and  die  without  return- 
ingto  his  dwelling.  (2).  There  musl  also  be  three  witnesses  pres- 
ent at  the  making  of  the  will,  and  (3),  they,  or  some  of  them,  musl 
be  specially  required  t<>  bear  witness  thereto  by  the  testator  hini- 
Belf.     (This  latter  request  was  known  as  the  rogatio  testium  I 

From  the  application  of  these  new  rules,  however,  three  import- 
ant classes  of  testators  were  excepted  by  the  Btatute : 


1  Under  the  law  of  Louisiana,  the  term  "  nuncupative  "  baa  a  different  mean- 
ing, well  illustrated  in  Miller  v.  Bhumaker,  12  La.  Ann.  898 
Chancellor  Cent,  in  Prince  v.  Hazleton,  20  Johns.  ;it  511. 
Blackstone  (2  Comm.  500,  501) gives  a  fuller  statement  <>f  tin'-  part  ■  •  *"  t » i . * 
st:it me  and   ii s  |.m\ isions  concerning  reduction  to  writing  and  proof.     It 
provided  thai  no  written  will  should  I"-  repealed  or  altered  by  mere  oral  words. 
Compare  Brook  v.  Chappell,  ::i  Wis.  W5;  Mi  Cune  \.  Hou  e,  6  Ohio  1 14 


430  FORM,   NATURE,    AND   SCOPE   OF   WILLS. 

1.  Testators  disposing  of  estates  not  exceeding  £30 ; 

2.  Mariners  at  sea  ; 

3.  Soldiers  in  actual  military  service. 

In  these  three  classes  of  cases  no  change  was  made,  and  conse- 
quently wills  falling  within  any  one  of  them  might  still  be  made 
according  to  what  had  been,  during  the  first  period,  the  general 
law  for  all  persons  and  for  personal  estates  of  every  magnitude. 

It  is  to  be  noticed,  then,  that  in  the  second  period  the  provi- 
sions of  the  general  law  were  made  much  more  precise  and  strict 
than  before,  but  that  nevertheless  it  still  continued  possible  for  all 
persons,  in  their  last  sickness,  to  make  nuncupative  wills  by  com- 
plying with  the  new  requirements  ;  and  also  that  the  new  require- 
ments had  no  bearing  whatever  on  the  three  excepted  classes. 
These  latter  were  known  as  "  privileged  testators." 

The  third  period  opens  with  1  Victoria,  c.  26  (1837).  By  the 
Statute  of  Wills  passed  in  that  year,  the  right  to  make  nuncupa- 
tive wills  was  utterly  swept  away,  except  that  the  second  and  third 
of  the  •'  privileged  classes,"  namely,  soldiers  being  in  actual  mili- 
tary service,  and  mariners  or  seamen  being  at  sea,  still  retain  their 
old  privilege.  A  testator  of  either  class  "  may  dispose  of  his  per- 
sonal estate  as  he  might  have  done  before  the  making  of  this  act." 
Under  the  old  law  and  under  both  acts  nuncupative  wills  could 
only  act  upon  personal  property.  And  the  same  has  always  been 
true  in  this  country.1 

Now  the  statutes  on  this  subject  in  some  of  our  States  are  based 
on  the  provisions  of  the  Statute  of  Frauds,  and  in  others  correspond 
more  or  less  closely  with  those  of  the  third  period  represented  by 
the  statute  of  1  Vict.,  c.  26.  And  in  detail  of  requirement  and 
of  phraseology  the  variations  among  all  the  laws  are  numerous 
and  have,  of  course,  an  important  bearing  on  the  cases  decided. 

Except  in  the  case  of  the  privileged  testators,2  all  nuncupative 
wiHs — where  allowed  at  all — must  be  made  "  in  extremis"  when 
the  testator  does  not  expect  to  recover,  and  has  no  reasonable  time 
to  prepare  and  execute  a  written  will.3 

1  Sadler  v.  Sadler,  60  Miss.  251;  Wooldridge  v,  Hancock  (Tex.),  6  S.  W. 
818;  Leathers  v.  Greenacre,  53  Me.  561;  Furrh  v.  Winston,  66  Tex.  521;  Van 
Deuzenv.  Gordon,  39  Vt.  Ill;  this  may,  of  course,  be  varied  by  statute,  Ash- 
worth  v.  Carleton,  12  Ohio  St.  381. 

■  Leathers  v.  Greenacre,  53  Me.  561. 

3  O'Neill  v.   Smith,  33  Md.  569;    Scaife  v.  Emmons,  84  Ga.  619;  Haus  v. 


NUNCUPATIVE   WILLS.  431 

Except  in  the  case  of  the  "privileged  testators," '  a  rogatio  tes- 
tinm,  or  summoning  of  witnesses  by  testator  to  take  notice  that 
his  oral  expressions  constitute  his  will,  is  essential.2 

Light  will  be  thrown  on  the  meaning  and  scope  of  the  statu- 
tory terms  describing  the  "  privileged  classes,"  by  the  following 

Illustrations, 
(a).   Soldiers  in  actual  service. 

1.  The  soldier,  to  be  in  "  actual  service,"  must  be  engaged  in  a 
military  expedition.3 

2.  Thus,  a  soldier  quartered  with  his  regiment  in  barracks,  is 
not  in  actual  service.4 

3.  So,  a  soldier  at  home  on  furlough,  is  not  in  actual  service.5 

4.  But  he  is  in  actual  service  when  in  the  enemy's  country,  and 
liable  to  be  called  into  battle  at  any  time.6 

5.  And  so,  also,  is  in  actual  service,  if,  when  on  a  march  to 
meet  the  enemy,  he  is  ordered  into  the  hospital  for  general  sick- 
ness.    He  is  still  "  on  the  expedition."  7 

(At.   Mariners  at  sea. 

1.  The  term  "  mariner,"  8  or  sailor,  is  not  confined  to  those  in 
the  navy.  It  applies  equally  to  the  merchant  service,  as,  for  in- 
stance, to  the  master  of  a  merchant  vessel.9 

2.  Nor  is  it  confined  to  the  common  sailors  only.  It  covers  all 
grades  and  classes  of  persons  employed  on  board  ship.  As,  the 
purser  of  a  man-of-war  ; lu  and  ;i  commanding  officer.11 

3.  At  sea.      Sec  Hubbard  v.  Hubbard,  given  p08& 

Palmar,  21  Perm.  St.  896;  <':,rroll  v.  Bonlum  (N\  J.),  9  A.  871;  Prince  v.  Ha- 
zleton,  30  Johns.  508;  contra,  Johnston  v.  Glasscock,  2  Ah  '.';!'.» 
■  Botrioid  v.  Krake,  l  Abb.  Pr.  R.  (n.  s.)  LIS. 
Will  ,,!'  Behden,  20  N.  J.  Bq.  478;  Dockum   v.   Rohinson,  26  N.  B   872; 
Bennett  v.  Jackson,  2  Phillira.   190;  Hausv.  Palmer,  21  Penn.  St.  296;  Bun- 
drick  v.  Baygood,  L06  N.  C.  168. 

Drummond  v.  Parish,  8  Curt.  522.     For  a  general  discussion  Bee  Smith's 

Will.  6  Phila.  L04 
i  White  v.  Repton,  BOurt  818.  Bmith's  Will,  8  Phila    104 

«  Leathers  v.  Greenacre,  58  Me.  561.  "  Gould  v.  Safitord,  89  \  t.  498 

See  Warren  v.  w  arren,  2  R.  I.  188. 

I ,i    ..i  Milligan,  2  Roherts.  108;  Goods  ot  Parker,  2  8w.  &  Tr. 

Goods  «-f  Hays,  2  Curt   888.  "  <;,""l    ol  Lay,  2  I  utf   87& 


432  F011M,   NATURE,   AND   SCOPE   OF  WILLS. 

NUNCUPATIVE   WILL.— MARINER  AT  SEA. 

Marin  Li.  Hubbard  v.  Elias  Hubbard. 

New  York  Couut  op  Appeals,  1853. 
(8  N.  Y.  196.) 

Application  for  probate  of  a  nuncupative  will  of  William  L. 
Hubbard. 

The  will  was  established  by  the  decree  of  the  Surrogate  ;  at 
Special  Term  this  decree  was  reversed ;  the  General  Term  re- 
versed the  Special  Term  ;  and  this  final  appeal  was  now  taken. 

William  L.  Hubbard  was  the  husband  of  the  plaintiff,  and  a 
son  of  defendant.  He  was  captain  and  owner  of  a  coasting 
schooner.  On  July  5,  1 849,  she  was  lying  at  anchor  in  Delaware 
Bay,  inside  the  breakwater,  about  a  mile  out  from  land.  On  that 
day,  deceased  was  taken  suddenly  sick,  on  board,  and  died.  Just 
before  his  death  he  told  several  witnesses  that  he  wished  his  wife 
to  have  all  his  property.  He  did  not  make  any  request  to  them 
to  bear  witness  that  it  was  his  will.  He  spoke  of  the  fact  that  a 
will  he  had  had  was  destroyed,  and  he  asked  the  mate  to  settle 
his  affairs. 

Mason,  J. — It  is  provided  in  this  State  by  statute  that  no 
nuncupative  or  unwritten  will,  bequeathing  personal  estate,  shall 
be  valid,  unless  made  by  a  soldier  while  in  actual  service,  or  by  a 
mariner  while  at  sea.  (2  R.  S.  60,  sec.  22.)  As  to  the  wills  of 
soldiers  in  actual  service,  and  mariners  at  sea,  they  are  left  en- 
tirely untrammeled  by  our  statutes,  and  are  governed  by  the 
principles  of  the  common  law.  The  exception  in  our  statute  of 
wills  in  favor  of  soldiers  and  mariners  was  taken  from  the  29 
Car.  2,  Chap.  3,  and  is  precisely  the  same,  and  the  same  exception 
is  retained  in  England  by  their  new  statute  of  wills.  (1  Vic., 
Chap.  26,  sec.  11.)  The  testator  was  a  mariner  within  the  mean- 
ing of  the  statute.  The  courts  have  given  a  very  liberal  con- 
struction to  this  exception  in  behalf  of  mariners,  and  have  held 
it  to  include  the  whole  service,  applying  equally  to  superior  offi- 
cers up  to  the  commander-in-chief  as  to  a  common  seaman.  (2 
Curt.  Eccl.  R.  338  ;  1  Williams  on  Exec.  97.)  It  has  been  held 
to  apply  to  the  purser  of  a  man-of-war,  and  embraces  all  seamen 
in  the  merchant  service.     (Morrell  v.  Morrell,  1  Hagg.  R.  51 ;  2 


NUNCUPATIVE   WILL. — MARINER  AT   SEA.  433 

Curt.  K.  338;  1  Williams  on  Exec.  97.)  This  will  was  made  at 
sea.  In  legal  parlance  waters  within  the  ebb  and  flow  of  the  tide 
are  considered  the  sea.  (Bouv.  Law  Die,  Title  Sea ;  Angell  on 
Tide  Waters,  44  to  49  ;  Gilpin's  R.  528 ;  In  re  Jefferson,  10 
Wheaton  R.  428 ;  Baker  v.  Hoag,  3  Selden  561.)  Lord  Hale 
says  the  sea  is  either  that  which  lies  within  the  body  of  the 
county,  or  without  it.  That  an  arm  or  branch  of  the  sea  within 
the  " fauces  terrce"  where  a  man  may  reasonably  discern  be- 
tween shore  and  shore,  is,  or  at  least  may  be,  within  the  body  of  a 
county,  but  that  part  of  the  sea  which  lies  not  within  the  body  of 
a  county  is  called  the  main  sea,  or  ocean.  (Harg.  Tract,  Chap.  4, 
p.  10 ;  Smith  on  the  Const,  of  Statutes,  sec.  588.)  He  adds, 
"  that  is  called  an  arm  of  the  sea  where  the  sea  floios  and  rejlows, 
and  so  far  only  as  the  sea  flows  and  reflows";  and  in  this  he  fol- 
lows the  exact  definition  given  by  the  Book  of  Assizes,  22 ;  Id. 
93,  and  this  is  the  doctrine  recognized  by  the  courts  of  this  coun- 
try. (Gilpin  R.  524;  United  States  v.  Grush,  5  Mason  290; 
United  States  v.  AVillberger,  5  Wheaton  76  to  94;  United  States 
v.  Robinson,  4  Mason  307,  1  Gallis.  R.  626.) 

The  courts  in  England  have  gone  to  the  utmost  verge  of  con- 
struction in  extending  this  exception  in  behalf  of  seamen.  In  a 
case  which  came  before  the  prerogative  court  of  Canterbury  in 
1810,  when  the  deceased  was  mate  of  her  Majesty's  ship  Calliope, 
and  whilst  the  vessel  was  in  the  harbor  of  Buenos  Avres,  he  ob- 
tained  leave  to  go  on  shore,  when  he  met  with  a  serious  fall,  and 
was  so  severely  injured  that  he  died  on  shore  a  few  days  after. 
Immediately  after  the  accident  he  wrote  on  a  watch  hill  with  a 
pencil,  his  will,  and  which  was  unattested,  but  which  was  cut  out 
and  certified  to  by  the  officers  on  board  the  ship,  and  the  court 
held  it  a  good  will  of  a  seaman  at  sea,  and  ordered  it  to  probate. 
(2  Curt.  Ecel.  R.  375.)  The  common-law  doctrine  in  regard  to 
nuncupative  will-  was  borrowed  from  the  civil  law.  (Drummond 
v.  Parish,  3  Curt.  Keel.  It.  522,  531,  etc.)  By  the  civil  law  the 
strict  formalities,  both  in  the  execution  and  construction  of  nun- 
cupative will-  "I  soldiers  was  dispensed  with,  and  although  they 
should  neither  call  the  legal  number  of  witnesses,  nor  observe  any 
other  solemnity,  yet  their  testament  was  held  good  it  they  were 
in  actual  Bervice.  (Justin.  Lib.  2,  Title  11:1  Lomax  on  Exrs. 
40.)  The  civil  law  was  extremely  indulgenl  in  regard  to  the  wills 
28 


434  FORM,   NATURE,   AND   SCOPE   OF   WILLS. 

of  soldiers.  If  a  soldier  wrote  anything  in  bloody  letters  upon 
his  shield,  or  in  the  dust  of  the  field  with  his  sword,  it  was  held 
a  good  military  testament.  (1  Bl.  Com.  417;  1  Loin  ax  on  Exrs. 
40,  41.)  The  common  law,  however,  has  not  extended  this  priv- 
ilege so  far  as  the  civil.  (1  Bl.  Com.,  supra.)  Blackstone  says 
that  soldiers  in  actual  military  service  ma}'  make  nuncupative 
wills,  and  dispose  of  their  goods,  wages,  and  other  personal  chat- 
tels without  those  forms,  solemnity,  and  expenses  which  the  law 
requires  in  other  cases. 

The  rules,  however,  which  are  to  be  observed  in  making  wills 
by  soldiers  and  mariners  are  the  same  by  the  common  law,  and 
yet  it  must  be  confessed  that  the  formalities  which  are  necessary 
to  be  observed  in  the  making  of  wills  by  soldiers  and  seamen  are 
not  defined  with  any  very  satisfactory  precision  in  any  of  the 
English  elementary  treatises  upon  the  subject  of  wills.  Swin- 
burne savs  that  those  solemnities  only  are  necessarv  which  are 
juris  gentium.  (Swinburne,  pt.  1,  sec.  14.)  Before  the  statute 
the  ecclesiastical  courts  to  whose  jurisdiction  the  establishment  of 
personal  testaments  belonged,  required  no  ceremonies  in  the  pub- 
lication thereof,  or  the  subscription  of  any  witnesses  to  attest  the 
same.  (1  Roberts  on  Wills,  147.)  A  will  of  personal  estate,  if 
written  in  the  testator's  own  hand,  though  it  had  neither  his 
name  or  seal  to  it,  nor  witnesses  present  at  its  publication,  was 
held  effectual,  provided  the  handwriting  could  be  proved.  (1 
Roberts  on  Wills,  148.)  And  so  if  written  by  another  person  by 
the  testator's  directions,  and  without  his  signing  it,  it  was  held 
good.  (Id.  148.)  It  is  laid  down  in  books  of  very  high  authority 
that  a  nuncupative  testament  may  be  made  not  only  by  the  proper 
motions  of  the  testator,  but  also  at  the  interrogations  of  another. 
(Swinburne  on  Wills,  part  1,  sec.  12,  p.  6;  Lomax  on  Exrs.  38; 
1  Williams  on  Exrs.  102.)  And  Swinburne  says,  "  As  for  any 
precise  form  of  words,  none  is  required,  neither  is  it  material 
whether  the  testator  speak  properly  or  improperly,  so  that  his 
meaning  appears"  (2  Swinburne,  part  4,  sec.  26,  p.  643);  and  he 
says  concerning  the  solemnities  of  the  civil  law  to  be  observed  in 
the  making  of  testaments,  soldiers  are  clearly  acquitted  from  the 
observation  thereof,  saving  that  in  the  opinion  of  divers  writers, 
soldiers,  when  they  make  their  testaments,  ought  to  require  the 
witnesses  to  be  present.     (1  Swin.  part  1,  sec.  14,  p.  94.)     It  is 


NUNCUPATIVE   WILL. — MARINER   AT    SKA.  433 

necessary,  however,  that  the  testamentary  capacity  of  the  de- 
ceased and  the  animus  testandi  at  the  time  of  the  alleged 
nuncupation  should  be  clearly  and  satisfactorily  proved  in  the  case 
of  the  nuncupative  will.  (1  Williams  on  Exrs.  102;  1  Adams 
Ecc.  K.  389,  390.) 

In  the  present  case  the  evidence  most  clearly  shows  that  the 
deceased  was  of  sound  mind  and  memory,  and  I  think  the  evi- 
dence in  the  case  satisfactorily  establishes  the  animus  testandi 
at  the  time  of  the  alleged  nuncupation.  He  told  his  mate,  Beck- 
with,  to  tell  his  wife  that  he  loved  her  till  the  end.  lie  was  ex- 
tremely sick,  and  undoubtedly  apprehending  death,  and  when 
asked  if  he  had  a  will,  he  replied  that  he  had  not,  and  on  being 
asked  what  disposition  he  wished  to  make  of  his  property,  he  said 
he  wished  his  wife  to  have  all  his  personal  property,  and  at  the 
same  time  requested  Beckwith  to  settle  his  affairs  and  see  to  his 
business.  El  should  be  borne  in  mind,  that  as  well  the  testator  as 
all  of  the  witnesses  present  were  seamen,  and  were  undoubtedly 
acquainted  with  the  rights  of  mariners  in  regard  to  making  their 
wills.  They  evidently  understood  it  to  be  a  will,  and  spoke  of  it 
a-  such.  And  I  think  the  animus  testandi  is  satisfactorily  es- 
tablished. The  evidence  is  quite  as  strong  in  the  case  under  con- 
sideration as  it  was  in  the  case  of  Parsons  v.  Parsons  (2  Green- 
leaf's  R.  298,  300),  where  the  testator  was  asked  to  whom  he 
wished  to  give  his  property,  and  replied,  "to  my  wife,  that  is 
agreed  upon/'  and  the  Supreme  Court  of  Maine  sustained  the  will 
in  that  case.  I  am  aware  that  it  is  said  in  some  of  the  books  that, 
it  is  essential  to  a  nuncupative  will  that  an  executor  be  named, 
but  this  i-  no  more  essential  than  in  a  written  will.  (Robe's  Abr. 
'.•"7:  How  v.  Goodfrey,  Finch's  R.  361 ;  [Prince  v.  ELazleton], 
20  J.  R.  "il'-'.i  1  am  inclined  to  think,  however,  that  the  evi- 
dence [s  sufficient,  in  the  present  case,  to  show  thai  the  testator 
intended  to  make  Beckwith  hi-  executor,  but  it  is  not  necessary 
thai  he  should  have  named  one. 

It  i-  not  necessary  to  decide  whether  the  mariner  must  make 
his  will  in  hi-  lasl  sickness  and  in  extremis,  as  was  held  to  be  the 
case  under  our  former  Btatute  of  wills  (20  J.  R.  503  [Prince 
v.  ELazleton,  20  Johns.  El.  502],)  and  as  i-  required  under  tin; 
t  itutes  of  several  of  our  ■  r  States  (I  Watts  &  Serg.  357;  t 
Humph. R.  342 ;  3  B. Monroe's  JR.  162 ;   I  Rawle  R.  46;  6  Watta 


430  FORM,   NATUKE,   AND   SCOPE   OF   WILLS. 

&  Serg.  184;  3  Leigh.  R  140;  1  Munf.  R  466;  6  B.  Monroe 
R.  538 ;  10  Yerg.  R.  501 ;  2  Greenleaf's  R.  298) ;  for  there  can 
be  no  doubt  upon  the  evidence  in  this  case,  but  this  will  was  made 
both  in  extremis  and  in  the  last  sickness,  and  under  circumstances 
which  precluded  the  making  of  a  written  will. 

I  think  that  the  factum,  of  this  nuncupative  will  is  clearly  es- 
tablished by  the  evidence  in  the  case,  and  also  the  testamentary 
capacity  of  the  deceased,  and  that  the  animus  testandi  at  the 
time  of  the  alleged  nuncupation  is  sufficiently  apparent  from  the 
evidence  in  the  case,  and  that  the  judgment  of  the  Supreme  Court 
should  be  affirmed. 

,  Judgment  affirmed. 

VIII.  CONFLICT  OF  LAWS. 

I.  Real  Property. — The  lex  loci  rei  sitce,  or  law  of  the  place 
where  the  land  lies,  governs  the  testator's  capacity,  and  power  to 
dispose  of  it,  in  the  manner  proposed,  and  the  forms  required  for 
execution.1  And  so  also  with  the  construction  of  will  devising 
real  property,2  though  the  applicability  of  this  rule  to  matters  of 
construction  has  been  doubted.3 

II.  Personal  Property. — The  lex  domicilii,  or  law  of  the  place 
where  testator  is  domiciled  at  the  time  of  his  death,  governs 
the  validity  and  construction  of  a  will  of  personal  property,  the 
capacity  of  the  testator,  his  power  to  make  a  will  disposing  of  his 
property  as  proposed,  and  the  forms  required  for  execution.4 

Questions  of  evidence  are  in  both  classes  of  cases  determined 
by  the  lex  fori,  or  law  of  the  jurisdiction  in  whose  courts  they 
are  raised.6 


1  Randolph  &  T.'s  note  to  1  Jarman  on  Wills,  1,  and  cases  cited;  Chaplin  on 
Suspension  of  the  Power  of  Alienation,  sees.  516-522;  Story,  Conflict  of  Laws, 
sees.  430,  431,  474;  Wharton,  Conflict  of  Laws,  sees.  570,  575. 

2  1  Jarman  on  Wills,  1;  1  Williams  on  Exrs.  (Perkins'  Am.  Ed.),  429  note; 
Wharton,  Conflict  of  Laws,  sec.  596. 

3 1  Jarman  on  Wills  (Randolph  &  T.'s  Am.  Ed.),  2,  note  2;  Story,  Conflict  of 
Laws,  sec.  479  h. 

4 1  Jarman  on  Wills,  2;  2  Wms.  on  Exrs.  1088;  1  Wms.  on  Exrs.  366,  note 
(n);  Story,  Conflict  of  Laws,  sees.  465,  479  a;  Wharton,  Conflict  of  Laws,  sees. 
570,  574. 

6  Wharton,  Conflict  of  Laws,  sec.  574. 


MISCELLANEOUS.  437 


IX.  MISCELLANEOUS. 

Attention  may  here  be  called  to  a  few  further  points  within 
the  general  field  of  this  chapter. 

(a).  Mistake.— In  Nelson  v.  McDonald,  61  Hun  406,  John  and 
Jane  Nelson,  husband  and  wife,  executed  wills  at  the  same  time. 
John  died,  and  it  was  then  first  discovered  that  each  had  by  mis- 
take signed  the  will  prepared  for  the  other.  Jane  brought  a  suit 
for  reformation  by  changing  the  provisions  in  the  husband's  will 
to  make  them  conform  to  those  in  the  will  he  intended  to  sign. 
It  was  held  that  the  action  could  not  be  maintained. 

To  the  same  effect  is  In  re  Goods  of  Hunt,  L.  E.  3  P.  & 
D.  250. 

{b).  Testator  not  dead.— Charles  James  Napier  was  reported  in 
the  London  Gazette  of  January  24,  1809,  to  have  been  killed  in 
an  engagement  with  the  enemy,  at  Corunna  in  Spain.  Probate 
of  his  will  was  granted.  The  report  was  erroneous,  and  subse- 
quently he  returned  to  England.  Probate  was  revoked  and  the 
will  was  cancelled  and  delivery  thereof  to  him  decreed.  In 
Goods  of  Napier,  1  Phillim.  83. 

(c).  On  proceedings  lor  probate,  false  and  scandalous  matter  in 
the  will  may  be  struck  out.  Matter  of  T.  B.,  44  N.  Y.  State  Re- 
porter 304. 

(d).  A  distinction  is  to  be  observed  between  conditional  wills 
{ante,  p.  397  et  seq.)  and  wills  certain  parts  of  which  are  con- 
ditional. In  the  latter  case,  the  will  as  such  holds  good,  while 
the  parts  in  question  are,  in  accordance  with  ordinary  principles, 
subject  to  the  condition.' 

1  Schouler  on  Wills,  §  285 ;  and  for  a  very  full  discussion  of  conditions  in 
wills,  Jaruian  ou  Wills,  Index,  "Conditions." 


CHAPTER  VI. 

CONSTRUCTION,  PRESUMPTIONS,  AND   RULES    OF 

LAW. 

The  subject  of  Construction  of  Wills  covers  a  broad  field  to 
which  entire  books  have  been  devoted.1  For  a  detailed  statement 
and  discussion  of  the  entire  subject,  these  works  may  be  referred 
to.  It  is  the  purpose  of  the  present  chapter  to  state  the  leading 
and  more  important  rules,  in  concise  form,  with  citations  of  au- 
thorities where  they  have  been  explained  and  applied.  Special 
obligation  in  the  treatment  of  the  present  subject  must  be  ac- 
knowledged to  the  writers  already  referred  to. 

In  the  first  place,  then,  as  to  Construction  in  general.  There 
is  a  Law  of  Construction  of  Wills,  and  another  Law  of  Construction 
of  Deeds.  The  latter  deals  rather  in  hard  and  fast  rules  which 
are  applied  with  great  strictness  and  which  have,  accordingly,  led 
to  comparatively  little  litigation.  The  former,  on  the  other  hand, 
seeks,  within  certain  limits  to  be  hereafter  explained,  for  the 
real  intention  of  the  testator,  as  expressed  in  the  will.  The  rea- 
son for  the  distinction,  at  least  in  large  part,  seems  to  be  that 
deeds  have  usually  been  drawn  by  persons  familiar  with  technical 
language,  or  substantially  copied  from  other  instruments  so  drawn, 
and,  also,  as  a  usual  rule,  are  comparatively  simple  in  their  pur- 
poses, and  run  along  in  familiar  and  customary  ruts  ;  while  wills 
are  so  commonly  drawn  by  laymen,  and  so  often  even  by  ignorant 
persons,  and  vary  so  enormously  in  their  scheme,  purposes,  and 
provisions,  that  the  courts  have  been  obliged  to  accord  them 
special  treatment,  and  endeavor,  through  the  mists  of  obscure,  or 
inartificial,  or  confusing  expressions,  to  get  at  the  real  purpose  of 
the  testator.2  It  has,  however,  been  found,  during  the  lapse  of 
the  centuries  while  our  law  has  been  growing,  that  even  testament- 

1  Hawkins  on  Wills,  Jarman  on  Wills,  Vols.  II.,  III. 
"  2  Jarman  on  Wills,  837. 
(438) 


CONSTRUCTION    OF    WILLS.  439 

ary  provisions,  variant  as  they  are  both  in  purpose  and  in  ex- 
pression, do,  nevertheless,  group  themselves  in  classes,  and  in  each 
class  certain  rules  have  gradually  grown  up  which  attribute  to 
given  forms  of  expression  certain  prima  facie  meanings  which 
the  courts  will  in  any  given  case  now  take  to  be  the  real  meaning 
unless  a  contrary  intent  appears  from  a  view  of  the  entire  instru- 
ment. Hawkins  defines  a  rule  of  construction,  accordingly,  in 
substance,  as  a  rule  that,  if  a  given  expression  might  be  taken  to 
mean  cither  x  or  y  (these  letters  representing  the  different  mean- 
ings that  might  in  reason  be  attributed  to  any  given  phrase),  it 
shall  prima  facie  be  taken  to  mean  ,c  (that  is,  a  particular  one  of 
those  possible  meanings),  unless  a  contrary  intention  appears, 
either  expressly  or  by  implication,  from  the  instrument.1 

It  will  thus  be  seen  that  these  rules  only  apply  where  the  testa- 
tor might  have  intended  either  of  the  possible  meanings ;  and  be- 
ing adopted  merely  to  give  effect  to  his  probable  intent,  they  yield 
to  proof,  drawn  from  the  instrument,  that  he  in  fact  did  not  have 
the  presumed  intention,  but  really  intended  to  give  his  expression 
the  other  meaning.  For  instance,  if  a  testator  provides  for  his 
"children,"  it  is  obvious  that  he  might  have  meant  merely  his 
own  sons  and  daughters,  or  might  have  intended  (as  not  infre- 
quently happens)  to  include  his  grandchildren.  Here  the  rule  is 
that  prima  facie  the  words  mean  only  his  own  sons  and  daughters ; 
but  yet  if  the  will  shows  that  in  fact  he  meant  to  include  grand- 
children within  the  term  "  children, "  the  rule  yields,  and  effect  is 
given  to  his  intention.  So,  also,  the  same  word  is,  by  another 
rule,  held  jprimd  facie  to  mean  legitimate  children.  But  if  the 
instrumenl  -how.-,  that  in  fact  he  meant  to  include  illegitimate 
children,  thia  intent  prevails.  The  intent  must  besought — except 
in  certain  cases— in  the  will  itself,  and  cannot  be  derived  from 
extrinsic  «\  idence.  This  subject  of  evidence  of  intention  will  be 
discussed  hereafter  by  itself." 

Presumptions  differ  from  rules  of  construction  in  that  they 
may  be  rebutted  by  extrinsic  evidence.  For  instance,  if  a  will  is 
drawn  with  blanks  for  the  names  of  legatees,  and  these  have  been 

tilled    in,  there    is    a    presiim  pi  i«  >n    that    they  were   tilled    in    before 

execution.     Bui  extrinsic  evidence  is  admissible  to  show  thai  in 
1  Hawkins  «>n  Wills,  Preface,  vil,  Bee  Index,  "  Evidence." 


440      CONSTRUCTION,  PRESUMPTIONS,  AND  RULES  OF  LAW. 

fact  they  were  tilled  in  after  execution.  So,  also,  if  each  of  two 
testamentary  instruments  probated  together  gives  a  legacy  of  the 
«mie  amount  to  the  same  person,  and  in  each  case  assigns  the 
same  motive  for  the  gift,  there  is  a  presumption  that  they  are  not 
cumulative,  and  that  only  one  gift  was  intended,1  and  extrinsic 
evidence  is  admissible  to  show  a  contrary  intent.  But  in  the  case 
of  a  mere  duplicate  gift,  in  totidem  verbis,  in  two  instruments, 
there  is  a  rule  of  construction  that  prima  facie  the  legacies  are 
cumulative.3  While  if  the  identical  gifts  are  contained  in  the 
same  instrument,  there  is  a  rule  of  construction  thai  prima  facie 
they  are  not  cumulative.3  Where  a  will,  when  presented  for  pro- 
bate, shows  interlineations,  or  other  alterations  on  its  face,  they 
are  presumed  to  have  been  made  after  execution."  The  result 
is  that  the  will  stands,  and  the  changes  are  disregarded.6  But  if 
there  were  blanks  left  for  names  and  amounts,  and  these  have 
been  filled  in,  there  is  a  presumption  that  they  were  filled  in  be- 
fore execution.6  In  either  case,  the  actual  facts  may  be  shown  by 
extrinsic  evidence. 

Rules  of  Law  are  fixed  principles  which  absolutely  control  the 
meaning  to  be  given  to  certain  provisions,  and  which  cannot  be 
varied  or  avoided  by  any  evidence.  Thus,  where  a  provision 
clearly  transgresses  the  law  against  Perpetuities,  it  is  held  invalid. 
No  evidence  could  make  it  good,  because  the  law  has  expressly 
forbidden  the  thing  thus  provided  for. 

The  foregoing  subjects  are  here  compared  and  distinguished 
because  the  peculiarities  of  each  serve  to  throw  into  stronger 
contrast  the  essential  characteristics  of  the  others. 

In  proceeding  now  to  consider  the  rules  of  Construction,  it  may 


1  Hurst  v.  Beach,  5  Madd.  358. 

5  Dewitt  v.  Yates,  10  Johns.  (N.  Y.)  156.  This  being  a  rule  of  construction, 
only  intrinsic  evidence  can  be  referred  to  to  rebut  it.  Hurst  v.  Beach,  5 
Madd.  358. 

3  Dewitt  v.  Yates,  10  Johns.  (N.  Y.)  156.  Though  Hawkins  gives  this  as  a 
rule  of  construction,  he  expresses  hesitation  in  his  note  (p.  305),  whether  it  may 
not  still  be,  as  it  originally  was,  a  mere  presumption,  capable  of  rebuttal  by 
extrinsic  as  well  as  intrinsic  evidence,  instead  of  a  strict  rule  of  construction  to 
be  rebutted  only  by  the  terms  of  the  instrument  itself  ;  he  inclines  to  the  latter 
view. 

4  1  Jarman  on  Wills,  143  ;  Schouler  on  Wills,  435. 

5  Doane  v.  Hadlock,  42  Me.  72.  6  1  Jarman  on  Wills,  144. 


KULES   OF   CONSTRUCTION.  441 

be  added  that  they  may  best  be  classified  in  two  groups,  the  first 
including  the  principles  of  general  scope  applicable  to  all  cases  of 
contruction  of  wills,  and  the  second  including  the  rules  bearing 
on  special  provisions  or  particular  phrases.  Attention  must  here 
agaiu  be  called  to  the  important  principle  that  every  rule  of 
construction  aimed  at  determining  testator's  intent  as  between 
two  or  more  possible  meanings,  is  subject  to  this  standing  quali- 
fication, namely, — "  Unless  a  contrary  intention  appears  from  the 
will."  These  words  should  be  taken  as  forming  an  appendix  to 
each  rule. 

KULES    OF    CONSTRUCTION.1 

A.   General  Principles. 

1.  The  great  aim  of  the  courts,  in  construing  wills,  is  to  arrive 
at  the  intent  of  the  testator. 

But  it.  is  important  to  notice  that  it  is  testator's  expressed  inten- 
tion that  must  be  sought,  and  not  his  desires  which  are  not  in 
fact  expressed.  The  question  is  not,  What  did  the  testator  in  fact 
wish,  but,  What  meaning  did  he  in  fact  express  in  the  provision 
under  consideration. 

2.  In  seeking  the  testator's  intention,  as  expressed  in  the  will, 
the  entire  instrument,  including  codicils2  if  any,  is  to  be  exam- 
ined, and  the  meaning  of  each  part  determined  in  the  light  of 
the  whole.8 

3.  Every  expression  is  to  be  so  construed,  if  practicable,  as  to 
give  effect  to  all  parts  of  the  will,  and  not  to  nullify  any.4 


1  A  distinction  exists  between  Principles  of  Interpretation,  such  for  instance 
as  A,  2,  s>ipra,  and  Rules  of  Construction,  such  as  B,  (a),  1,  infra.  The 
division  here  adopted,  however,  between  the  principles  and  rules  of  general 
BCOpe  nn  the  one  hand,  and  those  of  special  application  in  particular  iiiMances 
on  tlic  other,  though  not  always  sharply  marked  and  clear  cut,  will,  it  is  be- 
lieved, he  found  on  the  whole  more  practical  and  convenient. 

•  Brimmer  v.  Bohier,  1  Cush.  118(181-2);  Ward  v.  Ward.  105  N.  Y.  68. 

»2Jarmanon  Wills.  840;   Welschv.  Belleville  etc.  Hank.  04  111.  101  ;  Ranks 
v.  .lone,,  i;o  Ala.  005.     A  codicil  constitutes  a  part  of  the  will.     It  operates  as 
a  revocation  of  the  preceding  instrument  only  so  far  as  required  by  its  clear  im 
port.      Wetmore  V.  Parker,  52  N.  Y.  450.     General  terms  are  often   restricted 

in  meaning  by  the  context.     Webster  v.  Wiere,  51  Conn,  569;  Timewell  v. 
Perkins,  2  Atk.  102. 

1  Hanks  v  .b.rie,.  60  Ala.  oor, ;  Rogers  v.  Rogers  (N  .1  <  h  ).  28  All.  R.  125; 
Bard  ■•    Ashley,  117  N.  Y.  our,,  Terry  v.  Wiggins,  47  N.  Y.  512(517). 


442      CONSTRUCTION,  PRESUMPTIONS,  AND  RULES  OF  LAW. 

4.  The  will  is  to  be  so  construed,  if  practicable,  as  to  avoid 

intestacy.1 

5.  Where  the  various  parts  of  a  will  cannot  be  reconciled  and 
rendered  harmonious,  the  later  prima  facie  override  the  earlier;* 
the  theorv  being  that  in  such  case  the  testator  has  reconsidered 
and  reversed  his  first  purpose.  But  this  is  a  harsh  rule,  and  only 
to  be  applied  after  all  efforts  to  reconcile  the  provisions,  and  give 
effect  to  all,  have  failed.3 

6.  No  technical  terms  are  requisite  in  any  part  of  a  will.4  But 
if  they  are  employed,  they  are  prima  facie  to  be  taken  in  their 
proper  technical  sense.6 

T.  It  is  to  be  assumed  prima  facie  that  a  testator's  words  are 
to  be  understood  in  their  correct  and  primary  sense,  and  inter- 
preted according  to  grammatical  rules.8 

8.  As  already  explained  in  Chapter  V.  (under  the  head  of  Con- 
flict of  Laws),  the  construction  of  wills  is  governed,  in  wills  of 
real  property,  by  the  law  of  the  place  where  the  land  lies,  and  in 
wills  of  personal  property  by  the  law  of  testator's  domicil  at  the 
time  of  his  death.7 

9.  A  will  does  not  go  into  effect  until  the  death  of  a  testator. 
This  rule  inheres  in  the  very  nature  of  a  will.  But  it  may,  as  the 
saying  is,  speak  either  as  of  the  date  of  execution  or  as  of  the  date 
of  testator's  death,  or  some  other  date.  That  is  to  say,  references 
in  the  will,  such  as  to  classes  of  beneficiaries,  or  to  testator's  prop- 
erty, designated  or  described  in  general  terms,  might  be  intended 
by  him,  on  the  one  hand,  to  refer  to  the  persons  or  property 
answering  to  the  description  at  the  time  of  execution,  or,  on  the 

1  Vernon  v.  Vernon,  53  N.  Y.  351  (361) ;  Toms  v.  Williams,  41  Mich. 
552  (566). 

s  2  Jarman  on  Wills,  840  ;  Van  Nostrand  v.  Moore,  52  N.  Y.  12  (20) ;  Murfitt 
v.  Jessop,  94  111.  158 ;  Hemphill  v.  Moody,  62  Ala.  510  (513). 

3  Harrison  v.  Jewell,  2  Dem.  37 ;  Trustees  v.  Kellogg,  16  N.  Y.  83  (88) ; 
Rogers  v.  Rogers  (S.  J.  Ch.),  23  Atl.  Rep.  125. 

4  Bliven  v.  Seymour,  88  N.  Y.  469  (476). 

5  Keteltas  v.  keteltas,  72  N.  Y.  312;  Clark  v.  Smith,  49  Md.  106  (117).  But 
this  is  in  many  cases  readily  rebutted,  Kelly  v.  Reynolds,  39  Mich.  464. 

6  2  Jarman  on  Wills,  842. 

"  2  Jarman  on  Wills,  840.  For  a  certain  divergence  of  statement  among  the 
authorities,  see  ante,  p.  436. 


KULES   OF   CONSTRUCTION.  443 

other  hand,  to  refer  to  such  persons  or  property  as  might  answer 
to  the  description  at  some  later  period.  Of  course  the  testator  may 
use  terms  deiinite  enough  to  show  clearly  which  he  means,  as  for 
example  by  referring  to  "  the  house  I  am  now  possessed  of,"  or  by 
designating  the  beneticiariesby  name  ;  but  we  are  at  present  looking 
for  a  rule  of  construction  which  shall  determine  the  prima  facie 
meaning  where  the  expression  is  fairly  open  to  either  explanation. 
At  common  law,  then,  a  devise  of  testator's  real  property  in 
general  terms,  spoke  only  from  the  date  of  the  will,  as  covering 
all  that  testator  then  had  under  his  control,1  and  even  though  tes- 
tator's clearly  expressed  wish  was  to  include  after  acquired  lands.2 
But  general  testamentary  gifts  of  all  testator's  personal  property, 
or  all  the  residue  thereof,  spoke  prima  facie  from  the  date  of 
testator's  death.3 

Under  the  statute  of  1  Vict.  ch.  26,  sec.  24,  descriptions  of  real 
or  personal  estate,  the  subject  of  gift,  refer  to  and  comprise  the 
property  answering  to  the  description  at  the  death  of  the  testator. 
In  our  States,  statutes  have  generally  been  adopted  on  this  sub- 
ject, which  vary  somewhat  in  their  effect.  Sometimes  it  is  pro- 
vided that  all  the  land  possessed  by  testator  at  his  death  shall 
prima  facie  pass  under  a  general  devise  of  all  his  land  ;  and 
sometimes,  that  it  shall  be  construed  so  to  pass ;  sometimes  it  is 
provided  that  after  acquired  land  shall  prima  facie  pass  under  a 
devise  of  all  real  estate,  if  the  will  in  terms  denotes  an  intention 
to  that  effect,  while  sometimes  the  law  is  that  a  general  devise  of 
real  estate  -hall  pass  after  acquired  land  unless  an  intent  appear  to 
tin'  contrary,  and  still  elsewhere  the  statute  merely  confers  the 
power  to  dispose  by  will  of  after  acquired  real  estate.  There  are 
also  other  distinctions.  The  general  modern  rule,  however,  like 
that  relating  to  personal  property,  is  that  a  general  gift  of  all 
testator's  real  estate  carries  prima  facie  all  of  which  he  is  pos- 
ted at  death.  The  general  provisions  of  the  respective  statutes, 
a-  construed  bj  the  courts  of  their  jurisdictions,  musi  be  consulted 
in  each  case.4 

1  Hawkins  on  Wills,  II;  Jarman  on  Wills,  Chap,  x.;  sec  In  re  Dickerson 
(Conn  ),  Hi  Atl.  Rep   L94. 

I  Win-    .,ii  Exi      ."-'U;   In  r-  Dickcrson  (Conn  >.  Hi  Ail.  Rep.  194. 

II  iwkinj  on  \\  ills,  17. 

1  For  a  classification  and  explanation  "f  tin-  various  statutes,  see  1  Jarman  on 


444      CONSTRUCTION,  PRESUMPTIONS,  AND  RULES  OF  LAW. 

A  further  question  has  often  arisen  under  these  statutes  con- 
cerning their  effect  on  wills  executed  before  their  passage.  Under 
the  varying  phraseology  of  the  various  enactments,  the  decisions 
of  different  States  have  led  to  opposite  conclusions.1 

It  will  be  noticed  that  these  statutes  refer  to  the  subject  matter 
of  the  testamentary  provisions,  and  not  to  the  persons  who,  by 
general  description,  are  to  be  entitled  to  receive  them.2  As  to 
them,  the  old  rule  still  prevails  that  in  the  absence  of  a  contrary 
intent  shown  in  the  will,  gifts  to  classes,  as  to  "children"  or 
"  descendants,"  refer  to  those  who  may  compose  the  class  at  the 
date  of  testator's  death.3 

It  will  also  be  noticed  that  the  rule  that  a  will  speaks  as  of  the 
date^of  testator's  death  does  not  refer  to  the  question  of  its 
validity.  For  unless  it  is  a  valid  will  when  made,  subsequent 
events,  other  than  a  formal  execution  by  a  competent  testator, 
cannot  render  it  valid.4 

But  even  under  the  new  laws,  by  virtue  of  principles  already 
discussed,  if  testator  makes  it  clear,  on  the  whole  will,  that  he 
means  to  refer  only  to  property  possessed  by  him  at  the  date  of 
the  will,  as,  for  instance,  where  he  makes  it  clear  by  the  terms 
employed,  that  he  refers  exclusively  to  property  then  owned  by 
him  ;  so  where  he  devises  "  the  house  now  occupied  by  me," 
or  bequeaths  "  my  brown  horse,"  or  devises  "  that  freehold  which  I 
purchased  of  Mr.  B.,"  after  acquired  houses,  horses,  or  freeholds 
cannot  pass.6 

10.  Testator's  heirs  can  be  disinherited  only  by  express  devise 
or  necessary  implication.6 

11.  In  order  to  deprive  an  heir  or  distributee  of  his  share,  tes- 
tator must  by  will  give  the  property  to  some  one  else.  An  instru- 
ment devoted  exclusively  to  providing  that  an  heir  shall  take 


Wills  (Randolph  &  T.'s  Am.  Ed.),  326,  note  3;  Hawkins  on  Wills  (Sword's  Am. 
Ed.),  18,  note;  1  Wms.  on  Exrs.  220. 

1  1  Jarman  on  Wills  (Randolph  &  T.'s  Am.  Ed.),  326,  notes  3  and  4. 

2  1  Jarman  on  Wills,  337.  3  1  Jarman  on  Wills,  326,  337. 

4  1  Wms.  on  Exrs.  222;  1  Jarman  on  Wills  (4th  London  Ed.,  Randolph  & 
T.'s  Am.  Ed.),  337. 
6  Hawkins  on  Wills,  20. 
•  2  Jarman  on  Wills,  840  ;  1  Id.  532  ;  Gelston  v.  Shields,  78  N.  T.  275. 


RULES   OF  CONSTRUCTION.  445 

nothing,  and  not  containing  affirmative  dispositions  to  others,  does 
not  effect  the  purpose.1 

12.  Where  there  are  express  provisions,  implications,  such  as 
that  embodied  in  the  preceding  rule,  and  arising  from  mere 
weight  of  probability,  are  nut  to  be  indulged.2 

13.  "Where  there  are  express  and  clear  provisions,  they  are  given 
effect  in  spite  of  inadequate  reasons  assigned  for  them,  or  of 
erroneous  references  to  them  in  other  parts  of  the  will.  Nor 
will  they  be  controlled  by  the  fact  that  they  are  inconvenient, 
or  absurd  (if  lawful),  or  that  the  consequences  were  probably  un- 
foreseen.3 

14.  Where  words  occur  more  than  once  in  a  will,  they  are  to  be 
taken,  prima  facie,  as  bearing  the  same  meaning  throughout,  and 
so,  if  different  words  are  used  where,  if  the  intent  was  the  same, 
the  same  word  would  naturally  have  been  employed,  they  are 
taken,  prima  facie,  to  represent  a  different  intent.4 

15.  Testator  will  prima  facie  be  assumed  to  intend  that  his 
proposed  dispositions  shall  take  effect.  Therefore,  among  other 
consequences  of  this  rule,  the  court  will  give  to  an  expression, 
capable  of  either  rendering,  a  literal  or  a  freer  meaning,  according 
to  which  would  make  the  gift  valid  and  which  invalid.5 

Having  thus  stated  the  general  rules  of  construction,  attention 
may  further  be  again  called  to  the  controlling  effect  of  testator's 
intention  as  expressed  in  the  terms  of  the  will  taken  as  a  whole. 
If  this  intent  cannot  operate  in  full,  it  is  given  all  practicable 
effect.  And  in  giving  force  to  it,  as  disclosed,  the  court  may, 
where  the  necessity  is  obvious,  transpose,  correct,  supply, or  reject 
winds  and  limitations,  in  order  to  bring  them  into  manifest  bar- 
nioiiv  with  testator's  expressed  purposes." 

1  2  Jarman  on  Wills,  840;  Coffman  v.  Coffman,  85  Va.  4."")!). 
»  Wetter  v.  Walker,  02  Qa.  1 12 ;  2  Jarman  on  Wills  841. 
8 2  Jarman  on  Wills,  841. 

1  J  Jarman  on  Wills,  842  ;  hut  see  the  notes  there  given. 
2  Jarman  on  Wills,  842. 
6  2  Jarman  on  Wills,  *42,  843  ;  Hoc  v.  Vingut,  117  N.  Y.  204. 


446      CONSTRUCTION,  PRESUMPTIONS,  AND  RULES  OF  LAW. 

B.  Special  Rules. 

(a).  Provisions  concerning  land. 

1.  "  Land,"  or  "  real  estate,"  prima  facie  includes  reversionary- 
interests  in  land.1 

2.  Where  testator  has  contracted  to  purchase  land,  and  has  not 
yet  received  title,  a  general  devise  of  "  land  "  or  "  real  estate  " 
prima  facie  includes  his  rights  under  such  contract.2 

3.  By  the  old  law  a  general  devise  to  A  merely,  without  some 
words  of  perpetuity,  carried  only  a  life  estate.3  But  now,  by  vir- 
tue of  statutes  generally  adopted  in  England  and  our  States,  such 
a  devise  prima  facie  gives  a  fee.4 

4.  By  the  old  law  a  devise  to  A  for  life,  "  remainder  to  his 
heirs,"  or  "  to  the  heirs  of  his  body,"  gave  A  the  fee,  or  the  fee 
tail,  as  the  case  might  be.5  But  if  testator  sufficiently  explained 
the  meaning  he  attached  to  the  term  "  heirs  of  the  body,"  as  used 
to  designate  some  other  class  than  those  understood  by  the  law, 
they  might  take  the  remainder.6  This  rule  has  been  abolished  in 
many  of  our  States  by  statute.7 

5.  "  Estate,"  which  was  sometimes  formerly  held  to  mean, 
prima  facie,  personal  property,  now,  prima  facie  includes  both 
real  and  personal  property.8 

6.  "Rents  and  profits,"  by  devise,  prima  facie  carries  the  land 
itself.9 

7.  "  Use  and  occupation,"  employed  in  a  devise,  does  not  re- 

i  Hawkins  on  Wills,  38. 

2  Collison  v.  Girling,  4  My.  &  Cr.  63  (75).  As  to  lands  which  testator  has 
contracted  to  sell,  see  1  Jarman  on  Wills,  703  et  seq. 

3  1  Blackst.  Comra.  107,  108. 

4  For  a  list  of  statutes,  see  Hawkins  on  Wills  (Swords'  Am.  ed.),  139. 

5  1  Blackst.  Comm.  242  ;  2  Jarman  on  Wills,  332. 

6  2  Jarman  on  Wills,  333-4  ;  Hawkins  on  Wills,  186. 

1  For  a  classification  and  consideration  of  these  statutes,  see  Jarman  on  Wills 
(Randolph  &  TVs  Am.  Ed.),  ch.  36,  note  1  ;  Hawkins  on  Wills  (Swords'  Am. 
ed.),  184,  note. 

8  Hunt  v.  Hunt,  4  Gray  190  ;  Hawkins  on  Wills.  53  ;  Smith  v.  Smith,  17 
Gratt.  268  (276) ;  see  Birdsall  v.  Applegate,  Spenc.  (N.  J.)  245. 

9  Earl  v.  Rowe,  35  Me.  414  (419);  Smith  v.'Dunwoody,  19  Ga.  237  (256); 
Mouarque  v.  Monarque,  80  N.  Y.  320  (324). 


SPECIAL    RULES.  447 

quire  personal  occupation  by  the  devisee  himself.     He  takes  title 
free  from  such  condition.1 

8.  Where  testator  devises  land  to  A  in  fee,  and  in  case  of  his 
death  under  21  (or  other  specified  age),  or  without  issue  then  over, 
"or"  will  prima  facie  be  taken  to  mean  "  and."  a 

9.  Under  the  common  law,  where  a  testator  used  the  phrase 
"death  of  A  without  issue,"  it  was  held  to  refer  prima  facie  to 
the  death  of  A,  and  the  failure  of  his  issue  at  any  time  whatever, 
however  remote.3  The  same  rule  applied  where  the  phrase  is 
"  without  leaving  issue."  * 

The  rule  applies,  where  the  phrase  is  "die  without  issue,"  to 
both  real  and  personal  property.5  But  where  the  phrase  is  "  die 
without  leaving  issue,"  it  applies  only  to  real  property,  while  in 
case  of  personal  property  it  is  held  prima  facie  to  mean  "die 
without  leaving  any  then  surviving  issue."6 

The  meaning  of  the  foregoing  rule  is  expressed  in  the  phrase, 
"indefinite  failure  of  issue."  By  the  present  English  Wills  Act 
this  rule  is  reversed,  and  the  expressions,  "  die  without  issue," 
"die  without  having  issue,"  "die  without  leaving  issue,"  and  any 
other  equivalent  words,  refer,  prima  facie,  to  &  failure  of  issue  at 
the  death  of  the  person  whose  issue  are  spoken  of.  And  similar 
statutes  have  been  very  generally,  though  not  universally,  adopted 
by  our  States.7 

LO.  Estates  tail. — There  are  numerous  rules  of  construction  re- 
lating to  estates  tail,  which  may  be  found  fully  stated  and  <li>- 
cussed  in  the  text-books  already  referred  to.  A  large  number  of 
American   statutes   have  expressly  converted  estates  tail  into  es- 


1  Hawkins  on  Wills,  1  l!» 
Roome  v.   Phillips,  24   X.  Y.  460;    Burton  v.  Conigland,   82  N.  C.  99; 
Kendig  v.  Smith,  89  III.  300. 

Beauclerk  v,  Dormer,  2  Atk.  818;  Hall  v.  Chaffee,  U  X   II.  215(219). 

;  Eawley  v.  Northampton,  8  Mass.  88;  Chetwood  v.  Winston,  40  N.  J.  L. 
337. 

1  Hawkins., n  Wills.  206 j  Esilton  v.  Dsilton,  8  M<1   Ch,  B6 

'■  Qsilton  v.  Qsilton, 8  Md.  Ch.  86;  Plinn  v.  Davis,  L8  Ala.   182;  Eawley  v. 
Northampton,  8  Ma 

:  For  a  list  of  these  States,  with  references  to  their  statutes,  see  Hawkins  on 
Wills  (Swords'  Am   ed.  .  21 1,  note  l. 


448      CONSTRUCTION,  PRESUMPTIONS,  AND  RULES  OF  LAW. 

tates  in  fee  simple;  many  others  have  abolished  estates  tail ;  still 
others  have  converted  them  into  life  estates  with  remainders  in 
fee  simple ;  while  in  others,  similar  results  have  been  indirectly 
accomplished  by  other  statutes,  or  have  been  effected  by  the  de- 
cisions of  the  courts.  The  subject  is  not  one,  therefore,  of  suffi- 
cient practical  interest  to  warrant  discussion  here.  The  particular 
laws  of  the  several  States  should  be  carefully  examined.1 

11.  Vesting. — This  is  a  subject  properly  belonging  to  the  gen- 
eral Held  of  real  estate  law.  For  a  detailed  discussion,  reference 
should  be  made  to  Fearne  on  Contingent  Remainders;  Wash- 
burne  on  Real  Property  ;  Williams  on  Real  Property ;  1  Jarman 
on  Wills,  Chap,  xxv.,  and  other  standard  treatises.  A  state- 
ment and  discussion  of  the  leading  principles  may  be  found  in 
Chaplin  on  Suspension  of  the  Power  of  Alienation,  §§4-60,  and 
the  authorities  there  cited. 

12.  Widow's  dower. — The  former  English  rule  was  that  a  de- 
vise to  testators  widow,  of  a  part  of  the  lands  liable  to  her  dower, 
was  prima  facie  held  to  be  a  gift  in  addition  to  dower.2  By  the 
statute  of  3  and  4  Will.  IV.,  c.  105,  this  rule  was  reversed,  and 
the  gift  is  taken,  prima  faoie,  to  be  in  lieu  of  dower.  Most  of 
our  States  have  adopted  similar  statutes,  and  in  some  of  them  any 
provision  for  the  wife  in  the  will  is  taken,  prima  facie,  to  be  in 
lieu  of  dower.3  But  sometimes  the  old  rule  still  holds,  and  a 
widow  is  not  put  to  her  election  between  dower  and  the  provision 
for  her  in  the  will,  unless  the  two  are  strictly  inconsistent.4 

(b).  Provisions  concerning  personal  property. 

1.  "Money"  does  not,  prima  facie,  include  promissory  notes, 
stock,  etc.  But  it  does,  prima  facie,  include  money  on  deposit 
in  bank  subject  to  check.6 


1  For  a  list  of  these  statutes,  with  references,  see  2  Jarman  on  Wills,  324 
(Randolph  &  T.'s  Am.  ed.,  note  1). 

2  Hawkins  on  Wills,  273. 

3  For  a  summary  of  these  statutes,  see  1  Jarman  on  Wills  (Randolph  &  T.'s 
Am.  ed.).  458,  note  14,  Scribner  on  Dower,  Ch.  xvi. 

4  Konvalinka  v.  Schlegel,  104  N.  Y.  125. 

5  Beatty  v.  Labor,  2  McCart.  110. 


SPECIAL   RULES.  449 

2.  "Ready  money  "prima  facie  includes  cash  on  deposit  in 
bank  subject  to  check.1 

3.  A  gift  of  "  money  remaining "  after  payment  of  debts, 
prima  facie  carries,  in  the  absenee  of  a  general  residuary  be- 
quest, the  entire  residuary  personal  estate." 

4.  "All  my  goods,"  or  "goods  and  chattels,"  prima  facie,  car- 
ries tne  whole  personal  estate.3 

5.  "  Legacies  "prima  facie  includes  annuities.4 

6.  "  Debts  "  prima  facie  carries  money  in  bank  on  general  de- 
posit.6 

7.  "  All  my  effects  "  prima  facie  carries  the  entire  personal 
estate,6  and  does  not  cover  real  property.7 

8.  "Income,"  if  given  without  time  limit,  prima  facie  carries 
the  principal.8 

9.  Annuity.  The  creation  of  a  mere  annuity,  by  bequest,^>m?i« 
facie  is  for  the  life  of  the  annuitant.9 

10.  Vesting. — The  meaning  of  this  term,  as  applied  to  per- 
sonal property,  is  discussed  in  Hawkins  on  Wills,  223  et  seq.  ; 
"Williams  on  Executors  (Perkins'  Am.  Ed.,  1325  et  seq.,  notes), 
1224  et  seq. ;  Williams  on  Personal  Property  ;  1  Jarman  on  Wills, 
Chap.  x.w. ,  and  Chaplin  on  Suspension  of  the  Power  of  Alien- 
ation, §  388  et  seq.  In  general,  it  may  be  here  said  that  where  a 
legacy  is  given  of  which  the  enjoyment  is  postponed,  the  leading 
inquiry  upon  which  the  question  of  vesting  or  not  vesting  turns, 
i-.  whether  the  gift  itself  is  immediate,  and  only  the  time  of  en- 
joyment postponed,  or  is  future,  depending  as  a  condition  prece- 
dent apoD  the  arrival  of  the  beneficiary  at  a  given  age,  or  sur- 
viving some  other  .person,  or  the  like.10     In  other  words,  if  the 

1  See  Smith  v    Hindi,  '.I'.'  \.  V.  828. 

■'  Smith  v.  Davis,  1  Grant's  ('as.  (IVnn.)  168;  Paul  v.  Hal],  151  Tex.  10. 

3  Sec  Stuckcy  v.  Sturkry,  1  Hill  Ch.  (S.  ('.)  808  (:5()9). 

'  Smith  v.   FelloWB,   L81   Mass.  20.  5  Cnrr  v.  Carr,   I    Mcr.  641  n. 

Bawkin    OB  Wills,  66.  :  Hawkins  or.  Wills,  55. 

Gulici  v.  Gulick,  27  N.  J.  Eq.  498.  "  Bates  v.  Barry,  126  Mass.  h::. 

Chaplin  on  Su  pen  i<>a  of  the  1'uwurof  Alienation,  %  888  eteeq.,  ami  cases 
cited. 

29 


450      CONSTRUCTION,  PRESUMPTIONS,  AND  RULES  OF  LAW. 

gift,  and  the  direction  as  to  payment,  are  distinct,  the  postpone- 
ment of  payment  does  not  prima  facie  postpone  the  vesting  of 
the  gift.1 

And  further,  if  the  payment  of  a  gift  be  postponed,  but  the 
whole  income  in  the  meantime  is  given  to  the  same  beneficiary, 
prima  facie  the  gift  is  vested.2  The  same  rule  applies  where  the 
postponement  of  payment,  or  division,  is  for  the  convenience  of 
the  estate,  or  to  let  in  some  other  interest.3  As  a  general  propo- 
sition, the  law  favors  vesting.4 

11.  A  legacy  of  stock,  not  specifying  any  particular  shares,  is 
prima  facie  a  general  and  not  a  specific  legacy.5  But  if  the  in- 
tent appears  to  give  certain  particular  stock,  as  "  my  stock  in  the 
3  per  cents,"  etc.,  it  is  specific.6 

Note. 

For  a  full  treatment  of  the  force  and  extent  of  particular 
words  of  description  of  property,  see  Jarman  on  Wills,  Chap.  22, 
23,  and  24 ;  Hawkins  on  Wills,  Chap.  5 ;  Wms.  on  Exrs.,  1272 
et  seq. 

Terms  descriptive  of  beneficiaries,  Hawkins  on  Wills,  Chap.  8 
and  15  ;  Jarman  on  Wills,  Chap.  29,  30,  and  31 ;  Williams  on 
Executors,  1089  et  seq. 

(c).    Lapsed  devises  and  legacies. 

At  the  common  law,  where  a  gift  of  real  or  personal  property 

was  made  by  will,  and  the  devisee  or  legatee  died  during  the  life- 

time   of   the   testator,    the   gift   failed,  or,  as   the   saying   was, 

"  lapsed."  7    A  declaration  by  testator  in  the  will  that  such  should 

1  Hawkins  on  Wills,  236;  Kimball  v.  Crocker,  53  Me.  267;  Teele  v.  Hath- 
away, 129  Mass.  164;  Bushnell  v.  Carpenter,  92  N.  Y.  270;  Cox  v.  M'Kinney, 

32  Ala.  462. 

s  Newberry  v.  Hinman,  49  Conn.  130;  Provenchere's  Appeal,  67  Penn.  St. 
466;  Everett  v.  Mount,  22  Ga.  328. 

3  Kimball  v.  Tilton,  118  Mass.  311;  Robert  v.  Corning,  89  N.  Y.  225;  Tay- 
loe  v.  Mosher,  29  Md.  443. 

4  Tayloe  v.  Mosher,  29  Md.  443  (457). 

5  Pearce  v.  Billings,  10  R.  I.  102.  For  the  meaning  of  these  terms,  see 
Definitions,  post. 

6  Brainard  v.  Cowdrey,  16  Conn.  1;  Blackstone  v.  Blackstone,  3  Watts  335. 

7  A  general  review  of  the  law  on  the  subject  of  lapse  will  be  found  in  1  Jar- 
man on  Wills,  Ch.  XI. 


SPECIAL   RULES.  451 

not  be  the  result,  did  not  change  the  rule,  unless  he  provided  for 
a  gift  over  in  ease  of  death.  And  the  question  of  whether,  in 
given  eases,  sufficient  provision  has  been  made  to  prevent  the 
failure  of  the  gift,  or  rather  to  carry  it  out  in  favor  of  the  first 
donee's  heirs,  or  representatives  as  substituted  beneficiaries,  has 
given  field  for  many  minor  rules  of  construction.  If  the  gift  were 
originally  to  joint  tenants,  the  death  of  one  would,  on  familiar 
grounds,  cause  no  lapse;  but  if  to  tenants  in  common,  upon  the 
death  of  one  there  was  of  course  no  survivorship  as  to  his  share. 
So  also  if  the  gift  were  to  a  class,  to  be  ascertained  at  testator's 
death  or  later,  the  death  of  any  member  of  the  class,  during  tes- 
tator's  life,  would  not,  of  course,  cause  any  lapse. 

Where  land  was  devised  subject  to  a  money  charge,  the  death 
of  the  devisee  before  testator  did  not  vitiate  the  charge.1 

The  question  of  the  destination,  under  such  a  testamentary  pro- 
vision, of  the  legacy  thus  charged,  in  ease  it  is  the  legatee  who 
dies  before  testator,  is  said  by  Jarman  not  to  have  been  settled  by 
authority,  but  he  discusses  the  subject  at  length.2 

By  the  modern  English  Statute  of  Wills,  the  destination  of 
lapsed  devises  has  been  provided  for,  as  will  be  stated  hereafter 
under  subdivision  (d).  The  same  rule  has  been  adopted  in  some 
of  our  State-/'  It  also  provides  in  substance  that  where  a  bequest 
or  devise — for  any  estate  or  interest  not  determinable  at  or  before 
the  death  of  the  donee — shall  be  given  to  a  child  or  other  issue  of 
the  testator,  and  such  child  or  issue  shall  die  in  testator's  life- 
time, leaving  i>sue,  and  any  such  latter  issue  shall  be  living  at 
testator's  death,  the  devise  or  bequest  shall  prima  facie  not  lapse, 
but  shall  take  effect  as  if  the  death  had  occurred  immediately 
after  that  of  testator.  This  provision  has  been  followed  in  the 
Btatntes  of  many  of  our  State.-.'  And  in  some  instances  these 
statute-  expressly  prevent  lapse  in  all  cases  whatever.' 

('/).    /,'<  siduanj  i/>  ris,.s  and  b<que8t8. 

1.  Devises.  By  the  early  law  a  general  residuary  devise  did 
not  ci,\-,-y  a  specific  devise  which  lapsed.     Hut  this  rule  has  now 

1  Wigg  v.  Wigg,  1  Atk.  882  .  <>kr  v   Smith,  1  Ves.  Sr.  185. 
•  1  Jarman  on  V\  ill.  847. 

Randolph  &  T.'a  note  B,  '<>  I  Jarman  <<n  Wills,  851, 
1  Wot  list  "f  statutes,  Bee  Randolph  &  TVs  note  9,  to  1  Jarman  on  Wills,  852. 
5  Hawkins  on  Wills,  88  Swords'  Am  note  2. 


452      CONSTRUCTION,  PRESUMPTIONS,  AND  RULES  OF  LAW. 

been  reversed  in  England,  by  1  Yict.,  ch.  26.     In  this  country 
the  rule  varies  in  the  several  jurisdictions.1 

2.  Bequests. — A  general  residuary  bequest  covers  lapsed  and 
void  legacies." 

(e).  Tenancy. 

1.  Where  there  was  a  devise  or  bequest  to  several,  as  "  to  A, 
B,  and  C,"  or  to  a  class,  prima  facie  they  took,  under  the  earlier 
law,  as  joint  tenants,  and  not  as  tenants  in  common.3  In  some  of 
our  States  this  rule  has  been  reversed  by  statute,  and  such  pro- 
visions are  prima  facie  taken  to  create  a  tenancy  in  common. 
Some  of  these  statutes  apply  only  to  devises,  some  to  both  devises 
and  bequests,  and  in  one  (New  York),  the  new  statutory  rule, 
which  does  not  in  terms  cover  all  bequests,  has  been  given  a  wide 
scope,  and  is  apparently  applied  by  analogy  to  all  testamentary 
dispositions  of  personal  property.4 

(f).  Provisions  employing  terms  of  relationship. 

The  following  prima  facie  meanings  are  given  to  the  following 
terms : 

1.  "  Children  "  means  legitimate  children.  It  also  means  chil- 
dren as  opposed  to  grandchildren.  The  same  principles  are  ap- 
plied to  all  terms  of  relationship.5 

2.  "Brothers"  and  "sisters"  include  half-brothers  and  sisters.6 

3.  "  Issue  "  prima  facie  includes  all  descendants.  But  if  refer- 
ence is  also  made  to  their  "  parent,"  the  term  means  "  children."  7 

1  Hawkins  on  Wills,  44,  45;  and  for  the  American  statutes,  Jarman  on 
Wills  (Randolph  and  T.'s  Am.  Ed.),  vol.  3,  p.  798,  note  26. 

2  Drew  v.  Wakefield,  54  Me.  291  (296)  ;  Prescott  v.  Prescott,  3  Met.  141. 
For  a  general  discussion  of  residuary  bequests  and  lapsed  legacies,  see  Wms. 
on  Exrs.  1454  et  seq.;  Randolph  and  T.'s  Am.  Ed.  of  Jarman  on  Wills,  vol.  3, 
p.  798  et  ssq. ;  Hawkins  on  Wills,  Ch.  10. 

3  For  explanation  of  these  terms,  see  2  Blackst.  Coram.,  Ch.  xii. ;  and  for 
the  rule,  Hawkins  on  Wills,  Chap.  x. ;  and  for  a  general  discussion,  Jarman  on 
Wills,  Ch.  32. 

4  For  a  classification  of  the  various  American  statutes,  see  Hawkins  on  Wills 
(Swords'  Am.  ed.),  Ill,  note.  For  the  scope  of  the  New  York  rule,  see  Chaplin 
on  Suspension  of  the  Power  of  Alienation,  §  187  et  seq. 

5  Hughes  v.  Knowlton,  37  Conn.  429  ;  Appel  v.  Byers,  98  Penn.  St.  479. 
For  qualifications  and  exceptions  to  the  rule  see  Hawkins  on  Wills,  80. 

6  Hawkins  on  Wills,  86.  '  Id.  87. 


SPECIAL   RULES.'  453 

4.  The  "family"  of  a  person,  prima  facie  refer,*  to  his  chil- 
dren only.' 

5.  "  Relations,"  prima  facie  refers  only  to  those  who  would  be 
entitled  under  the  local  Statute  of  Distribution.3 

6.  "Representatives,"  prima  facie  refers  to  executors  or  ad- 
ministrators, and  not  to  relatives.3 

7.  "  Heirs."  In  our  States  the  general  rule  is  that  if  personal 
property  is  given  to  "  heirs,"  the  word  will  prima  facie  be  taken 
to  mean  those  who  would  take  under  the  Statute  of  Distribution.4 
"While  in  case  of  devises  of  real  property  the  term  is  of  course 
used  in  its  ordinary  sense. 

8.  k'  Xf.xt  of  kin,"  applying  to  devisees  or  legatees,  refers, 
prima  facie,  not  to  those  entitled  to  take  under  the  Statute  of 
Distribution,  but  to  the  nearest  blood-relations,  in  equal  degree, 
of  the  person  whose  "  next  of  kin  "  they  are.5  But  "next  of  kin 
according  to  the  statute,"  refers  to  the  persons  entitled  under  the 
local  Statute  of  Distribution.8  In  both  cases,  the  phrase  refers  to 
those  who  are  next  of  kin  at  the  time  of  death  of  the  person  whose 
next  of  kin  they  are.7 

9.  AVhere  testator  provides  a  gift  in  general  for  children^ 
either  his  own  or  those  of  another,  and  in  stating  the  number  of 
them  names  a  number  less  than  there  really  are  at  the  date  of  the 
will,  prima  facie  this  is  an  error,  and  all  then  in  being  take.8 

The  rule  is  the  same  where  the  gift  is  to  brothers,  sisters,  grand- 
children, or  servants.9 

10.  "Where  testator  gives  property  to  children,  either  his  own 


1  Heck  v.  Clippinger,  5  Pcnn.  St.  385. 

1  Varrcll  v.  Wendell,  30  N.  H.  431  (435) ;  McNeiledge  v.  Barclay,  11  S.  &  R. 
in:;. 
3  Halsey  v.  Paterson,  :'>7  N.  .1.  Eq.  445". 
Ferguson   v.   Stc\v;irt,  14  Ohio  ltd;  Houghton  v.  Kendall,  7  All.  72  (76); 
Nelson  v.  Blue,  63  N.  0,  659  (660). 

» 2Jannan  on  Wills  (6th  Eng.  ed.  ;  Randolph  &  TVs  Am.  ed.)107;  Red- 
mond  v.  Burroughs,  <;:;  X.  C,  242(246). 

Hawkins  on  Wills,  97.  :  Brenl  v.  Washington,  is  (}ratt.  526(5:55). 

I  lie  v.   Irvine,   21    IVnn.  St.  812  ;  Thompson  v.  Young,  25  Md.  450  (45«J); 
Cleveland  v.  (arson,  37  N    J    Eq.  37H. 
•  Hawkins  on  Wills,  62,  68,  citing  English  cases. 


4f>4      CONSTRUCTION,  PRESUMPTIONS,  AND  RULES  OF  LAW. 


or  those  of  another,  this  mere  term  prima  facie  means  those  in 
bein£  at  the  death  of  the  testator.1 

The  same  rule  applies  to  grandchildren,  issue,  brothers,  nephews, 
and  cousins.3 

It  does  not  apply  where  specific  persons  are  pointed  out.3  Nor 
where  the  number  is  stated,  either  correctly  or  incorrectly/ 

11.  Where  testator  gives  a  corpus  generally  to  children  as  a 
class,  whether  his  own  or  those  of  another,  and  the  gift  is  future 
and  not  present,  there  the  interest  therein  vests,  according  to  its 
nature,  but  subject  to  open  and  let  in  future-born  members  of  the 
class  until  the  time  for  distribution.6 

The  rule  applies  to  grandchildren,  issue,  brothers,  nephews, 
and  cousins.6 

12.  Where,  however,  each  member  of  the  class  of  children  is 
to  receive  his  share  at  a  different  time,  as,  upon  reaching  majority, 
or  upon  marriage,  here  the  period  for  opening  and  letting  in  new 
members  ends  when  the  first  of  the  class  becomes  entitled  to  his 
share.7 

13.  Children  in  ventre  sa  mere  are  regarded  as  in  existence,  to 
satisfy  the  terms  of  a  gift  to  children  "  born"  or  "living"  at  a 
given  time.8 

14.  Where  testator  makes  a  devise  or  bequest  to  the  chil- 
dren of  two  or  more  persons,9  or  one  or  more  persons  and  the 


1  Downing  v.  Marshall,  23  N.  Y.  373  ;  Shotts  v.  Poe,  47  Md.  513 ;  Wood 
v.  McGuire,  15  Ga.  202. 

2  Hawkins  on  Wills,  68,  citing  English  cases. 

3  Hawkins  on  Wills,  69. 

4  See  preceding  rule.  For  a  discussion  of  further  qualifications,  or  distinc- 
tions, under  this  rule,  see  Hawkins  on  Wills,  69  el  seq. 

5  Ward  v.  Tomkins,  30  N.  J.  Eq.  3 ;  Barnum  v.  Barnum,  42  Md.  251 ; 
Moore  v.  Dimond,  5  R.  I.  121  (129). 

6  Hawkins  on  Wills,  72. 

•  Tucker  v.  Bishop,  16  N.  Y.  404  ;  Hubbard  v.  Lloyd,  6  Cush.  522. 

8  Hall  v.  Hancock,  15  Pick.  255  (258)  ;  Groce  v.  Rittenberry,  14  Ga. 
232. 

9  Farmer  v.  Kimball,  46  N.  H.  469  ;  Hill  v.  Bowers,  120  Mass.  135  ;  Ver- 
planck's  Will,  91  N.  Y.  439 ;  Walters  v.  Crutcher,  15  B.  Monr.  10.  For  an 
illustration  of  a  contrary  result  due  to  contrary  intent,  see  Vincent  v.  New- 
house,  83  N.  Y.  505. 


SPECIAL   RULES.  455 

children  of  another  or  others,1  as  tenants  in  common,  here  the 
heueHcianes  prima  facie  take  per  capita  and  not  per  stirpes. 

15.  Where  testator  devises  land  to  B,  on  failure  of  the  heirs 
of  A,  and  B  is  himself  capable  of  being  an  heir  of  A,  the  word 
heirs  will  be  taken  to  mean  heirs  of  tJie  body,  in  order  to  give 
effect  to  the  devise  to  B.2 

(g).   Execution  of  Powers. 

1.  By  the  earlier  law,  where  the  testator  was  the  donee  of  a 
general  power  over  property,  which  he  might  exercise  by  will, 
general  devises  and  bequests  by  him  did  not,  prima  facie,  apply 
to  the  property  over  which  he  had  the  power.3  But  now  by  the 
statute  of  1  Vict.,  ch.  26,  §27,  this  rule  is  reversed,  md  pri?)id 
facie  a  general  testamentary  disposition  of  property  sufficient  in 
terms  to  cover  that  in  question,  is  deemed  to  be  an  execution  of 
the  power  unless  a  contrary  intent  appears.  And  similar  statutes 
have  been  adopted  in  many  of  our  States/ 

2.  "Where  testator  gives  real  or  personal  property,  and  desig- 
nates either  a  class,  or  a  number  of  beneficiaries,  leaving  it  to  a 
designated  person  to  choose  the  {particular  ones  from  the  class  or 
number  who  shall  receive  the  gift,  or  to  designate  the  proportions 
in  which  they  shall  receive  it,  here,  if  there  is  in  fact  no  exercise 
of  the  power,  all  the  members  of  the  class,  or  all  the  persons 
named,  take  the  gift  in  equal  -hares.6 

(//).    Trusts. 
1.  A  devise  t<>  a  trustee  on  an  active  trust  to  pay  the  rents  and 
profits  to  a  beneficiary,  gives  the  trustee  the  legal  title/'     But  if 

Brittain  \    I  ai    >n,  46  Md.  186;  Macknel  v.  Macknet,  24  N.  J.  Eq.  277. 
Baidy  v.  Wilcox,  58  Md.  180;  Goodell  v.  Bibbard,  32  Mich.  47;  Williams 
v   McCall,  12  Conn.  ! 

'Burleigh  v.  Clough,  52  N.  II.  267;  Johnson  v.  Btanton,  30  Conn.  303; 
Mory  v.  Mitchell,  18  Md.  241. 

lPoi  n  list  oi  these  States,  see  2  Jannan  on  Wills  (Randolph  A:  T.'s  Am. 
Ed.),  862,  uote  2€  i  X.  V.  R.  B.  737,  §126;  Bangs  v.  Smith,  98  Mass. 
878 

Varrell  v.  Wendell,  20  N  ll.  181;  Hull  v.  Bull,  8  Conn.  47.  Porageneral 
discussion  of  the  execution  of  powers  by  will,  Bee  Hawkins  on  Wills,  Ch.  2;  1 
Jannan  on  w  Ills,  676,  and  note  5  Randolph  &  T.'s  Am.  Ed. 

3parhawk  v.  Cloon,  I  .268;  Ware  v.  Richardson,  8  Md.  508. 


456      CONSTRUCTION,  PRESUMPTIONS,  AND  RULES  OF  LAW. 

the  trust  is  passive,  and  directs  the  trustee  to  permit  the  benefi- 
ciary to  receive  the  rents  and  profits,  here  the  beneficiary  takes 
the  legal  title.'  The  laws  concerning  uses  and  trusts  are  not  uni- 
form throughout  our  States,  and  this  rule  varies  accordingly. 
But  in  New  York,  where  the  statutes  have  very  greatly  changed 
the  law  of  trusts,  the  same  substantial  distinction  exists.  For 
a  trust  to  receive  and  apply,  or  pay  over,  the  rents  and  profits, 
gives  the  trustee  the  legal  title.  While  trusts  not  permitted, 
where  the  general  result  aimed  at  is  not  unlawful,  vest  the  title 
in  the  proposed  beneficiary,  subject,  in  appropriate  cases,  to  a 
power  in  the  proposed  trustee.2 

2.  A  trustee  takes  by  devise  only  the  title  necessary  for  the 
performance  of  the  trust.3 

3.  Precatory  words. — Where  a  testator  makes  a  devise  or  be- 
quest, and  expresses  a  desire  concerning  the  particular  application 
of  it,  prima  facie  this  creates  an  obligatory  trust  in  some  States,4 
but  in  other  States  the  mere  expression  of  a  desire  is  prima  facie 
merely  a  wish  expressed  to  the  beneficiary,  and  not  obligatory.' 

The  following  illustrations  of  precatory  words  are  given  by 
Hawkins : 6  I  recommend  ;  It  is  my  dying  request ;  It  is  my  ab- 
solute desire;  I  entreat;  I  advise;  In  full  confidence  that,  etc.; 
Trusting  that,  etc. ;  Not  doubting  that,  etc. ;  Well  knowing  that, 
etc.  ;  Hoping  that,  etc.  All  these  may  be  controlled  by  the  con- 
text, as,  also,  may  even  the  express  words  "  in  trust." '  Thus, 
even  where  precatory  words  are  prima  facie  obligatory,  a  gift  to 
A,  "  not  doubting  but  that  she  will  dispose  of  what  shall  be  left 
at  her  death  to  our  two  grandchildren,"  would  be  held  a  mere 
suggestion.8 

4.  In  jurisdictions  where  a  trustee  can  in  fact  devise  the  legal 

1  Hawkins  on  Wills,  140. 

2  Chaplin  on  the  Suspension  of  the  Power  of  Alienation,  §  250,  §  145. 

3  Hawkins  on  Wills,  143. 

4  For  instance,  Cole  v.  Littlefield,  35  Me.  445;  Warner  v.  Bates,  98  Mass. 
274;  Ingram  v.  Fraley,  29  Ga.  553. 

5  For  instance,  Gilbert  v.  Chapin,  19  Conn.  346;  Batchelor  v.  Macon,  69  N.  C. 
545;  Burt  v.  Herron,  66  Penn.  St.  400  (402) ;  Lawrence  v.  Cooke,  104  K  Y. 
632  ;  Campbell  v.  Beaumont,  91  N.  Y.  464. 

8  Hawkins  on  Wills,  160  et  seq.  '  Freedley's  Appeal,  60  Penn.  St.  344. 

8  Wynne  v.  Hawkins,  1  Bro.  C.  C.  179. 


SPECIAL    RULES.  4,)7 

title  to  property  held  by  him  in  trust,  a  general  devise  of  "land" 
or  "real  estate," prima  facie,  includes  land  so  held  in  trust.1 

(i).  Substitution  and  Survivorship. 

1.  In  England,  the  rule  is  that  where  there  is  a  gift  of  person- 
alty, with  words  of  survivorship,  the  latter  refer  prima,  facie  to 
the  period  of  payment  or  distribution,  and  not  to  that  of  testa- 
tor's death.2     The  true  rule  as  applied  to  realty  is  in  doubt.3 

In  this  country  the  decisions  on  the  rule  itself  are  conflicting.4 

2.  "Where  there  is  a  gift  of  a  legacy  or  share  to  a  legatee,  and 
over  in  case  of  his  death  under  certain  circumstances,  here,  if  the 
eveut  happens  during  testator's  life,  the  gift  over  takes  effect.5 

3.  In  a  bequest  to  one,  and  over,  in  case  of  his  death,  to  an- 
other, the  reference  to  the  death  of  the  first  named  means  prima 
facie  his  death  before  the  time  for  payment  or  distribution.6 

4.  Where  there  is  a  gift  to  several  legatees  or  devisees,  and  on 
certain  contingencies  the  respective  shares  are  to  accrue  to  the 
other  takers,  here,  prima  facie,  each  given  share  can  go  over  but 
once,  and  thereupon  becomes  freed  from  the  provision  concerning 
accruer.7 

(j).  Equitable  Conversion. 

In  determining  whether  a  given  scheme  of  disposition  deals 
with  real  or  personal  property,  the  mere  fact  of  the  actual  form 
it  wears  at  testator's  death  is  not  decisive.  It  is  here  that  the 
doctrine  of  equitable  conversion  becomes  important.8 

Where  there  is  an  imperative  direction  to  sell,  here  equity,  on 
the  principle  of  regarding  that  as  done  which  ought  to  be  done, 

1  Hawkins  on  Wills,  :!•">;  as  to  the  remedy  of  the  cestui  que  trust,  see  1  Jarnian 
on  Wills,  698 

Hawkins  on  Will-.  861.  3  Id.  262. 

4  Hill  v.  Bank,  I".  N    II    270;  Bughea  v.  Bughes,  12  B.  Mon.  115;  Martin  v. 
Kirby,  11  Gratl   67;  Ross  v.  Drake,  87  Penn.  St.  878. 
Goddard  v.  May,  LOO  Mass.  W8. 

'  Bima  v.  Conger,  80  Miss.  284;  Briggs  v.  Shaw,  0  All   517. 

1  Everitt  v.  Everitt,  20  \.  V.  89;  Butchinson's  Appeal,  :;i  Conn.  800;  Chap- 
lin on  Suspension  of  the  Power  of  Alienation,  §  184. 

•  Aeummarj  of  the  leading  principles  concerning  Equitable  Conversion  may 
be  found  in  Chaplin  on  Ion  of  the  Power  of  Alienation,  §§  470-478. 


458      CONSTRUCTION,  PRESUMPTIONS,  AND  RULES  OF  LAW. 

considers  the  conversion  as  effected  at  the  time  when  a  sale  ought 
to  take  place,  whether  the  land  is  really  sold  then  or  not. 

Although,  consistently  with  equitable  conversion,  a  discretion 
may  be  reposed  in  the  person  directed  to  sell,  concerning  the 
time  when  the  sale  shall  be  made,  yet  a  mere  discretionary  power 
of  sale  does  not  effect  equitable  conversion.  A  direction  to  sell 
may  be  implied  from  the  instrument,  and  need  not  be  expressed 
in  so  many  words.  It  may  be  gathered,  from  the  entire  instru- 
ment. 

The  accompanying  rules  of  construction  upon  this  subject  are 
to  the  effect  that  provisions  calling  peremptorily  for  a  sale  either 
at  a  fixed  time,  or  at  a  time  to  be  determined  by  the  person  hav- 
ing the  power  of  sale,  shall  prima  facie  effect  a  conversion  unless 
it  appear  that  such  was  not  in  reality  the  intent  of  testator  in 
using  the  given  expressions,  or  that  it  was  his  intent  only  for 
certain  purposes  which  are  shown  to  have  failed. 


EXTRINSIC    EVIDENCE    ON    CONSTRUCTION. 

We  have  just  seen  that  there  are  certain  principles  of  a 
sweeping  character,  in  the  light  of  which  the  courts  set  forth  in 
their  search  for  testator's  intention.  To  this  class,  for  example, 
belongs  the  rule  that  in  looking  for  the  meaning  of  a  given  phrase 
all  parts  of  the  entire  will  should  be  considered  together.  Such 
rules  as  properly  belong  to  this  class  are  not  subject  to  the  qual- 
ification "  unless  a  contrary  intent  appear."  It  is  not  their  office 
to  attribute  a  given  meaning  to  a  given  phrase,  but  merely  to 
point  out,  so  to  speak,  the  spirit  in  which  the  search  for  the  intent 
should  be  pursued.  We  have  also  noticed  that  there  are  other 
rules,  comprising  some  of  those  given  under  the  head  of  "  General 
Principles"  and  all  those  under  the  head  of  "Special  Rules," 
which  point  out  the  prima  facie  meaning  to  be  attributed  either 
to  broad  classes  of  provisions,  if  they  are  general,  or,  if  they  are 
special,  to  particular  terms,  phrases,  and  provisions.  Now  all 
these  rules  which  attribute  a  prima  facie  meaning,  are  intended 
merely  as  so  many  convenient  means  of  reaching  testator's  intent, 
and  if,  in  accordance  with  legal  principles,  the  intent  can  be  shown 
to  be  contrary  to  that  suggested  by  the  rule,  the  rule,  of  course, 
vields. 


EXTRINSIC    EVIDENCE   ON    CONSTRUCTION.  459 

Now  the  evidence  that  might  have  a  logical  bearing  on  such 
questions  might  be  either  such  as  is  offered  by  the  will  itself,  or 
such  as  is  brought  in  from  outside.  The  former,  called  intrinsic 
evidence,  is  always  admissible.  The  admissibility  of  the  latter, 
called  extrinsic  evidence,  is  now  to  be  considered. 

The  first,  and  sweeping  rule  on  this  point,  is,  that  (subject 
to  certain  exceptions)  the  provisions  of  every  will  must  be  con- 
strued in  the  light  of  the  evidence  supplied  on  the  face  of  the  will 
itself  only.  This  is  an  obvious  and  natural  corollary  of  the  gen- 
eral principle  embodied  in  the  statutes  of  wills  by  which,  for  the 
sake  of  safety,  precision,  and  certainty,  all  wills, — except  nuncu- 
pative wills, — are  required  to  be  put  in  writmg  by  the  testator. 
It  is  clear  that  if  free  permission  should  be  given  to  offer  outside 
evidence  of  what  testator  really  meant  to  say,  in  order  to  qualify, 
contradict,  alter,  or  supplement  what  he  in  fact  has  said,  the  ad- 
vantages derived  from  the  requirement  that  he  must  put  his 
wishes  in  writing,  in  a  duly  executed  instrument,  would  be  to  a 
great  extent  lost. 

Extrinsic  evidence  is,  however,  perforce  admitted  for  certain 
purposes  and  to  some  extent.  As  there  are,  to  begin  with,  certain 
classes  of  such  evidence,  the  admissibility  of  which  is  too  obvious 
to  call  for  extended  comment,  it  will  be  well  to  state  them  first 
before  taking  up  the  more  difficult  cases. 

First,  then,  if  the  characters  in  which  a  will  is  written  are  diffi- 
cult to  decipher,  or  the  language  is  foreign,  extrinsic  evidence  for 
such  purposes  is  of  course  admissible.1  So  if  testator,  though  not 
a  foreigner  employing  a  foreign  language,  lived  in  a  district  where 
certain  terms  employed  in  the  will  were,  as  a  matter  of  general 
local  usage,  _ivn  a  meaning  different  from  their  ordinary  sense 
at  huge,  the  fact  thatsuch  usage  did  exist  may  be  shown  by  extrin- 
evidence,  unless  the  will  indicate-  that  testator  did  use  them 
in  their  ordinary  sense."  So,  further,  if  testator  has  employed 
peculiar  names,  <>r  nicknames,  U.v  persons  or  thing-,  extrinsic  evi- 


:  Wifcra  n  on  Wills  Prop.  IV.;  1  Jarman  <>n  Wilts,  421;  Caulfleld  v.  Bulli- 
v:ui.  85  N    V.  153. 

I  Jarman  on  Wills  (lih  London  ed.,  Randolph  &  TVs  Am.  ed.),  121.  And 
technical  terms  may  ;ii-<>  be  explained,  or,  bo  to  speak,  translated.  2  Parsons 
on  I  ontr Mi  ,  "iil. 


460      CONSTRUCTION,  PRESUMPTIONS,  AND  RULES  OF  LAW. 

dence  may  be  offered  to  identify  the  person  or  thing  intended.1 
And  so  where  testator  mentions  specific  property  or  persons  by 
descriptive  terms,  as,  "  the  house  I  live  in,"  a  or  "  the  farm  I  bought 
from  A,"  or  "  my  farm  called  Trogue's  Farm,"  3  extrinsic  evidence 
is  of  course  admissible  to  show  what  house  he  did  then  live  in, 
what  farm  he  did  buy  from  A,  and  what  farm  was  called  Trogue's 
Farm.  And,  in  general,  extrinsic  evidence  of  all  material  facts  re- 
lating to  the  identity  of  the  person  claiming  or  property  claimed 
may  be  introduced  for  the  purpose  of  identification.4 

But  although  it  is  thus  allowable  to  offer  extrinsic  evidence  of 
facts,  to  identify  the  person  or  thing  described  in  the  will,  such 
evidence  is  not  admissible  to  show  that  testator,  in  using  a  term 
applicable  to  existing  persons  or  things,  meant  it  to  also  cover 
something  else  not  in  fact  included  in  the  phrase  used.  Thus, 
though,  as  in  the  instance  just  given,  extrinsic  evidence  may 
be  admitted  to  show  what  farm  was  "  called  Trogue's,"  or  what 
estate  was  meant  by  the  description  "  my  estate  called  Ash- 
ford  Hall,"  5  yet  where  testator  devised  his  "  estate  of  Ashton,  in 
the  county  of  Devon,"  extrinsic  evidence  that  testator  was  accus- 
tomed to  include  under  the  name  of  the  "  Ashton  estate,"  prop- 
erty in  contiguous  parishes  other  than  Ashton,  was  excluded,  the 
word  u  of  "  being  taken  in  the  sense  of  "  in,"  or  "  at."  8  If  he  had 
said  "  my  so-called  Ashton  estate,"  it  might  have  been  shown  that 
the  estate  "  so  called  "  included  property  not  in  Ashton.7 

Having  thus  disposed  of  these  obvious  classes  of  admissible  ex- 
trinsic evidence,  we  come  now  to  cases  where  words,  phrases,  or 
provisions  are  found  in  the  will,  the  meaning  of  which  is  disputed 
on  account  of  different  views  of  testator's  intent  in  using  them. 
In  proceeding  to  consider  the  admissibility  of  extrinsic  evidence 
in  such  cases,  we  must  first  notice  that  if  the  terms  used  are  sen- 
sible with  reference  to  extrinsic  circumstances,  when  taken  in  their 

1  Per  Lord  Abinger,  in  Hiscocks  v.  Hiscocks,  5  M.  &  W.  368. 
5  Doe  d.  Clements  v.  Collins,  2  T.  R.  498. 

3  Goodtitle  v.  Southern,  1  M.  &  Sel.  299. 

4  Wigram  on  Wills,  Prop.  V.  ;  see  Hiscocks  v.  Hiscocks,  5  M.  &  W.  368. 

5  Ricketts  v.  Turquand,  1  H.  L.  C.  472. 

6  Doe  d.  Chichester  v.  Oxenden,  3  Taunt.  147. 

7  Per  Lord  Cottenham,  in  Ricketts  v.  Turquand,  1  H.  L.  C.  472  (490). 


EXTRINSIC   EVIDENCE   ON   CONSTRUCTION.  461 

primary  and  appropriate  sense,  and  in  the  light  of  the  facts  proved, 
no  other  meaning  can  be  imposed  on  them  by  outside  evidence.1 

Passing  on  from  these  preliminary  considerations,  we  find  that 
the  extrinsic  evidence,  the  admissibility  of  which  in  construction 
we  are  considering,  is  divided  into  two  great  classes.  And  much 
light  will  be  thrown  on  the  subject  if  we  here  carefully  notice  the 
distinction  between  them. 

To  this  end  then,  we  will  suppose  that  in  construing  a  given 
will  a  dispute  has  arisen  concerning  the  proper  meaning  to  be  at- 
tributed to  one  of  its  words,  phrases,  or  provisions.  The  rule  of 
construction  applicable  to  the  point,  here  steps  in  and  says  that 
prima  facie  it  shall  receive  a  specified  meaning  which  we  will  call 
x.  It  is  contended,  however,  that  in  reality  it  should  be  given  an- 
other meaning,  which  we  will  call  y.  To  show  the  soundness  of 
this  latter  view,  it  is  proposed,  in  the  absence  of  satisfactory  in- 
trinsic evidence,  to  offer  extrinsic  evidence  of  two  kinds.  First, 
it  is  proposed  to  prove  what  were  the  actual  facts  which  have  a 
logical  bearing  on  the  subject  and  in  the  light  of  which  testator 
executed  his  will, — facts,  for  instance,  such  as  the  number  of  tes- 
tator's children  ;  the  fact  that  all  his  children  were  illegitimate  ;  the 
fact  that  he  had  no  nephews  of  his  own,  but  that  his  wife  had 
nephews,  etc.,  according  to  the  nature  of  the  point  in  dispute. 
This  is  one  of  the  two  classes  of  extrinsic  evidence,  and  the  pur- 
pose of  it  is  to  lay  a  foundation  of  facts  from  which  the  mind  of 
the  judge  will  logically  draw  the  conclusion  that  the  testator  must 
Jmr,  intended  the  disputed  term  in  the  sense  designated  y.  It 
is  also  proposed  to  show  by  direct  extrinsic  evidence  exactly  what 
his  intent  was,  —as,  for  example,  by  testimony  that  at  the  time  of 
executing  the  will  he  declared  that  he  used  this  term  in  the  sense 
designated  y. 

The  statement  of  these  two  classes  of  evidence  shows  the  dis- 
tinction between  them.  One  produces  underlying  facts  tending 
to  indicate  as  a  matter  of  reasoning  from  the  existence  of  these 
facts  that  testator  must  have  meant  SO-and-so ;  the  other  aims 
directly  at    the   point  of   intent,  and  is  to  the  elTect  that    in    reality 

hie  intent  wsa  so-and-so. 
The  former  class  of  extrinsic  evidence  of  facts  is  admissible  in 

1  Wigram  <m  WiiN,  Prop.  II. 


462      CONSTRUCTION,  PRESUMPTIONS,  AND  RULES  OF  LAW. 

several  cases;  the  latter  only  in  one.  We  will  first  consider  the 
cases  where  the  underlying  facts  may  be  shown,  and  will  then  con- 
sider the  one  case  in  which  the  intent  itself  may  be  shown  by  di- 
rect extrinsic  evidence. 


(a).  Extrinsic  evidence  of  underlying  facts. 

If,  as  we  have  seen,  a  term,  taken  in  its  primary  and  natural 
sense,  is  applicable,  with  accuracy  sufficient  on  reasonable  grounds 
to  satisfy  the  mind,  in  reference  to  an  existing  object  or  subject, 
it  is  not  allowable  to  introduce  extrinsic  evidence  to  show  that 
testator  did  not  mean  to  use  the  term  in  its  primary  sense.1  But 
where  there  is  no  object  or  subject  thus  covered  by  the  natural  and 
primary  meaning  of  the  term  employed,  here  evidence  may  be  ad- 
mitted to  show  that  interpreting  the  term  in  a  popular  or  less  appro- 
priate sense  there  is  an  object  or  subject  answering  thereto,  with  suf- 
ficient legal  and  reasonable  certainty  to  satisfy  the  mind  of  the  judge.2 
Thus,  if  testator  by  will  gives  property  to  the  "  children  "  of  a  de- 
ceased person,  here,  if  there  are  legitimate  children  of  that  person, 
extrinsic  evidence  is  not  admissible  to  show  that  in  fact  he  also 
had  illegitimate  children.      But  if  there  were  no  legitimate  chil- 


1  Wieram  on  Wills,  Prop.  II. ;  Appel  v.  Byers,  98  Penn  St.  479.  The  full 
force  of  this  rule  seemed  somewhat  shaken  by  the  decision  in  Grant  v.  Grant, 
L.  R.  5  0.  P.  (Exch.)  727,  where  testator  devised  property  to  "my  nephew  Jo- 
seph Grant, "and,  though  he  had  such  a  nephew  of  his  own,  extrinsic  evidence  was 
admitted  to  show  the  fact  that  a  nephew  of  testator's  wife  was  also  named  Joseph 
Grant,  and  had  been  brought  up  by  testator,  etc.,  and  that  testator  was  igno- 
rant of  the  existence  of  his  own  nephew.  The  court  go,  however,  on  the 
ground  that  "  nephew"  was  a  word  properly— though  not  with  equal  strictness 
—applicable  to  each,  and  that  therefore  there  was  an  equivocation—^  hereafter 
explained.  Their  view  was  that  to  all  intents,  and  according  to  usual  practice,  it 
might  be  said  that  the  term  was  applicable  with  substantial  equality  to  both 
persons  (see  In  re  Parker,  L.  R.  17  Chan.  D.  265).  But  in  Wells  v.  Wells, 
L.  R.  18  Eq.  504(1874),  Jessel,  M.  R.,  disapproved  and  declined  to  follow 
Grant  v.  Grant,  and  held  that  under  a  bequest  to  "all  my  nephews  and 
nieces,"  there  being  such,  no  extrinsic  evidence  was  admissible  to  show  that  a 
niece  of  testatrix's  husband  was  included  (even  though  the  will  itself  had  else- 
where named  her  as  "my  niece.")  The  court  in  Merrill  v.  Morton,  L.  R.  17 
Chan.  Div.  382  (1881),  took  the  same  course  ;  compare  Cloak  v.  Hammond, 
L.  R.  34  Chan.  D.  255. 

9  Wigram  on  Wills,  Prop.  III. 


EXTRINSIC    EVIDENCE    ON   CONSTRUCTION.  463 

dren  answering  the  description,  extrinsic  evidence  is  admissible  to 
show  that  he  had  illegitimate  children  ;  so,  also,  in  case  of  a  gift  to 
testator's  ''nephews,'''  when  in  fact  he  had  none  and  never  could 
have  any  (as,  if  his  father  and  mother  were  dead,  and  he  had 
no  brother  or  sister),  here  extrinsic  evidence  is  admissible  to 
show  that  there  were  nephews  of  testator's  wife.1  This  evidence 
is  only  admitted  to  show  the  facts,  and  not  to  show  directly  what 
testator's  intent  was."  The  conclusion  as  to  the  intent  follows,  in 
such  case,  as  a  logical  deduction  from  the  facts  shown.3 

The  foregoing  rule  does  not  of  course  apply  where  the  term  used 
in  the  will  refers  to  a  state  of  facts  existing  not  at  the  date  of  execu- 
tion, bur  at  the  date  of  testator's  death,  or  any  time  succeeding  the 
execution.  For  if  the  term  was  used  with  this  latter  view,  obviously 
the  fact  that  at  the  date  of  execution  there  was  no  subject  or  ob- 
ject, corresponding  to  its  strict  meaning,  would  not  logically  point 
to  the  conclusion  that  testator  must  have  used  the  word  in  a  popular 
or  less  appropriate  sense  in  reference  to  any  other  actually  existing 
subject  or  object.  For  testator,  though  knowing  that  there  was 
then  no  subject  or  object  such  as  he  named,  may  have  contem- 
plated the  possible  or  perhaps  probable  existence  thereof  at  the 
future  time  in  view.  Thus  in  the  case  just  mentioned  of  a  gift  to 
"children,"  if  the  parent  of  the  "  children "  had  been  living,  tes- 
tator, though  knowing  that  he  had  only  illegitimate  children,  may 
have  contemplated  only  the  contingency  of  his  yet  having  legiti- 
mate children,  and  have  intended  to  provide  for  such  if  they 
should  come  into  being. 

It  should  here  further  be  added  that  as,  in  a  class  of  cases 
already  alluded  to,  the  fact  that  there  is  no  object  or  subject  an- 
swering to  the  primary  meaning  of  the  term  employed,  will  open 
the  door  to  proof  thai  there  /.v  an  object  or  subject  which  the  term 
doe-  cover  it'  taken  in  a  popular  or  less  appropriate  sense;  so  also 
we  iiud  that  where  the  obstacle  in  the  wav  of  giving  a  term  its 
Btricl    and    primary  meaning  arises   not   from  the  lack  of  an  object 

or  subject  answering  to  it  when  so  interpreted,  but  arises  instead 

from  the  context  of   the  will,  here   also   the  door  is  opened  for  evi 

dence  of  facte  showing  that  the  term  can  take  on  a  secondary  or 


1  Bherratl  v.  Mountford,  L.  R.  h  Ch.  938.    Bee  oote  -'.  ante,  page  462. 
i  Jarmao  on  Wills,  424,  note  </).  l  Jarman  on  Wills,  428. 


404      CONSTRUCTION,  PRESUMPTIONS,  AND  RULES  OF  LAW. 

more  popular  meaning  which  will  render  it  reasonable,  give  it  ef- 
fect, and  make  it  harmonious  with  the  context.1 

In  the  cases  thus  far  considered,  though  evidence  of  the  first 
class  is  admitted  to  show  the  facts,  evidence  of  the  second  class  to 
show  the  intent  directly  is  not  admitted. 

Before  proceeding  to  consider  the  admissibility  of  the  second 
class  of  extrinsic  evidence,  attention  should  here  be  called  to  the 
fact  that  inasmuch,  as  we  have  just  seen,  the  courts  may,  wherever 
there  is  no  object  or  subject  answering  to  the  term  in  the  will,  in 
its  primary  sense,  look  at  the  actual  underlying  facts,  to  see 
whether  there  is  any  object  or  subject  answering  to  the  term  in 
any  other  allowable  sense,  it  therefore  follows  from  this  as  a  nec- 
essary corollary  that  in  all  cases  the  court  may  receive  evidence  of 
the  underlying  facts  in  order  to  ascertain  whether,  in  the  given 
cases,  there  are  or  are  not  objects  or  subjects  answering  to  the  pri- 
mary and  appropriate  meaning  of  the  term  in  question."  If  there 
are,  the  inquiry  ceases,  and  no  further  evidence  is  admissible.  If 
there  are  not,  further  evidence  of  the  facts,  bearing  on  the  ques- 
tion whether  there  are  other  objects  or  subjects  answering  to  the 
term  in  a  less  appropriate  but  allowable  sense  is  admissible.  If 
this  evidence  shows  that  such  do  exist,  the  judge  draws  the  logi- 
cal conclusion  from  these  facts  as  to  testator's  intent.  But  no  di- 
rect evidence  of  the  intent  itself  is  admitted,  and  if,  after  all  the 
facts  have  been  shown,  the  term  in  question  is,  as  the  saying  is, 
still  insensible,  it  will  be  void  for  uncertainty.3 

(b).  Extrinsic  direct  evidence  of  intent. 

Coming  now  to  another  class  of  cases,  it  will  be  seen  that  in  the 
case  of  any  term  used  by  testator  to  refer  to  persons  or  property, 
it  may  turn  out  that  although  the  term  employed  seems  plain 
enough  on  its  face,  there  aie  in  fact  two,  or  perhaps  more,  persons 
or  things  answering  to  it  with  precision.  In  all  such  cases,  both  of  the 
classes  of  extrinsic  evidence  already  considered  may  have  a  logical 
bearing — first,  evidence  to  show  that  there  really  are  two  or  more 
objects  or  subjects  equally  answering  to  the  description  ;  *  and  sec- 

!  1  Jarman  on  Wills  (4th  Eng.  ed.),  419;  Doe  d.  Gore  v.  Langton,  2  B.  &  A. 
(680),  693. 

3  Wigram  on  Wills,  Prop.  V.  3  Wigram  on  Wills  (O'Hara's  ed.),  175. 

4  Wigram  on  Wills,  Prop.  V. 


EXTRINSIC   EVIDENCE   ON   CONSTRUCTION.   .  465 

ond,  evidence  to  show  which  of  these  was  meant  by  the  testator.1  As 
to  the  first  of  these  classes,  it  is  always  admissible  in  such  cases,  as 
well  as  in  those  we  have  already  considered.  But  the  second  class, 
aimed  at  directly  showing  testator's  intent,  though  excluded  in  the 
cases  already  considered,  is  here  admitted.  These  cases  now  under 
consideration  constitute  what  are  known  as  equivocations.  That  is 
to  say,  the  term  employed  is  equally  applicable  to  each  of  several 
persons  or  things.  These  equivocations  comprise  one  branch  of 
what,  in  a  well-known  but  often  misunderstood  and  misapplied 
phrase,  are  known  as  latent  a/mhiguities.  A  latent  ambiguity  exists 
where  a  term  used  appears,  on  the  face  of  the  will,  to  be  clear  and  free 
from  any  ambiguity  at  all,  and  that  is  only  shown  to  involve  an  am- 
biguity by  extrinsic  evidence  showing  facts  that  render  two  or  more 
meanings  equally  possible.  Thus  if  a  testator  devises  "  my  manor  of 
Dale,"  no  ambiguity  appears  on  the  face  of  the  will.  But  if  it  is 
shown  by  extrinsic  evidence  of  the  facts  that  he  really  had  two 
manors,  one  of  North  Dale,  and  one  of  South  Dale,  it  is  seen  that 
the  term  employed  contained  within  it  a  hidden,  or  latent,  ambi- 
guity. 

A  patent  ambiguity  is  one  that  is  shown  to  be  such  on  the  very 
face  of  the  will,  by  the  statements  there  made,  as,  for  example,  a 
bequest  of  "some  of  my  best  linen,"  2  or  a  devise  to  "  the  best  men 
of  the  White  Towers."  Here  the  ambiguity  or  uncertainty  shows 
on  the  face  of  the  instrument,  and  consists  in  a  failure  on  testator's 
part  to  decide  just  what  objects  or  subjects  he  did  mean. 

Now  it  has  often  been  said  that  in  cases  of  patent  ambiguity  no 
extrinsic  evidence  of  intent  is  admissible,  while  it  is  admissible 
in  all  cases  of  latent  ambiguity.  This  statement  of  the  rule  is,  to 
say  the  least,  misleading,  and,  as  often  understood,  erroneous.  For 
the  term  latent  ambiguity  is  a  broad  one  covering  not  only  <<juivo- 
cations  (which  have  just  been  described,  and  which  constitute  one 
kind  of  latent  ambiguity),  but  also  other  cases.  Now  extrinsic  evi- 
dence  of  'ml<  nt  is  admissible  only  in  that  class  of  latent  ambiguities 
known  as  "equivocations."1      In   this  class,  the  extrinsic  evidence 

1  Wigram  en  Will-,  Prop.  VII.;  1  Greenl.  en  Evidence,  §  '-289. 
«  Peck  v.  Balaey,  2  I'.  Wms.  :!87. 

JTeai  Book,  49  Edw.  :; ;  cited  in  Winter  v.  Perratt,  '■>  Clark  &  F.  688. 
*  HiscockB  v   Bfecocks,  ">  M.  A-  W.  :;ii;; ;  Due  .1.  Lord  v.  Needs,  2  M.  &  W. 
12!) ;  Miller  v.  Travers,  8  Bing,  211. 
30 


466      CONSTRUCTION,  PRESUMPTIONS,  AND  RULES  OF  LAW. 

may  be  of  any  sort  which,  upon  general  principles,  is  relevant  and 
material  on  the  question  of  testator's  intent,  including  testator's 
declarations  on  the  subject.1  In  order  to  raise  a  true  equivocation, 
it  is  not  necessary  that  the  description  should  be  in  all  respects  ac- 
curate and  perfect."  It  is  sufficient  if  it  applies  to  each  of  the  sev- 
eral persons  or  things  indifferently,  and  to  the  particular  person  or 
thing,  to  which  the  judge  applies  it,  with  such  legal  certainty  as  to 
satisfy  his  mind  that  such  is  the  person  or  thing  meant.3 

To  sum  up,  then,  extrinsic  evidence  may  be  given  to  translate, 
or  decipher ;  or  to  show  the  facts  relating  to  the  person  claiming, 
or  the  thing  claimed,  under  the  will.  Next,  where  there  is  any 
ambiguity,  that  is,  any  double  meaning,  it  is  either  patent  or  latent. 
If  patent,  the  underlying  facts  may  be  shown  in  order  to  put  the 
judge,  so  to  speak,  into  the  atmosphere  surrounding  the  testator. 
If,  in  the  light  of  these  facts,  the  term  used  is  sensible,  it  must  be 
applied  without  any  direct  evidence  of  intent ;  if  insensible,  the 
provision  must  fail.  If  latent,  then  in  all  cases  the  underlying 
facts  may  here  also  be  shown.  If,  in  their  light,  the  meaning  is 
sufficiently  clear  to  satisfy  the  mind  of  the  judge,  it  must  be  applied  ; 
if  still  insensible,  the  provision  fails.  Thus  far  the  rules  concern- 
ing latent  and  patent  ambiguities  are  alike.  In  the  one  particular 
class  of  latent  ambiguities  known  as  equivocations,  already  described, 
further  extrinsic  direct  evidence  of  intent  is  admitted. 

Thus  it  appears  that  extrinsic  evidence  of  the  facts  is  admitted 
in  all  cases  of  both  latent  and  patent  ambiguities,  while  extrinsic 
direct  evidence  of  intent  is  admissible  in  only  one  class  of  latent 
ambiguities.  And  this  is  all  there  is  in  the  rule  concerning  latent 
and  patent  ambiguities.4 

There  is  some  variance  in  the  degree  of  strictness  with  which 
extrinsic  evidence  of  intent  is  excluded  in  the  various  American 
courts,  but  the  general  tendencv  is  toward  a  closer  adherence  to 
the  established  rules. 


1  Wigram  on  Wills,  §  187.  2  Cloak  v.  Hammond,  L.  R.  34  Cn.  D.  255. 

3  Wigram  on  Wills,  §  186. 

4  See  a  valuable  note  on  the  subject  in  2  Parsons  on  Contracts,  557  (e). 


DEFINITIONS. 

In  addition  to  the  explanations  of  numerous  terms  already 
made  in  the  foregoing  pages,  the  following  definitions  are  here 
given  : 

Bequi  st,  a  testamentary  disposition  of  personal  property.  This 
word,  and  its  verb  "  bequeath,"  are  sometimes  used  by  unskilled 
testators  as  synonymous  with  ''devise,"  and  in  such  cases  the 
intent  governs. 

1>,  m%e,  a  testamentary  disposition  of  real  property.  The  word 
is  sometimes  used  by  unskilled  testators  as  synonymous  with 
"bequest,"  and  in  such  cases  the  intent  governs. 

Executory  devise.  For  definition,  and  distinction  between 
them  and  remainders,  see  2  Gladstone's  Commentaries,  172,  173. 

Gift  Causa  Mortis.  Such  a  gift  must  (1)  be  made  in  actual 
expectation  of  impending  death,  and  (2)  must  be  accompanied  by 
delivery,  and  (3)  to  perfect  it  the  donor's  death  must  in  fact 
ensue,  and  (4)  it  must  be  accepted  by  the  donee.1 

Holographic  WUl.  In  its  U6ual  sense,  this  word  refers  merely 
to  a  will  which  is  entirely  in  testator's  own  handwriting. 

Legacy,  a  testamentary  gift,  more  properly  of  personal  prop- 
erty, but  very  frequently  employed  in  popular  usage  to  designate 
any  te  tamentary  gift  whether  of  realty  or  personalty.  A  distinc- 
tion is  to  be  noticed  between  three  classes  of  legacies, — specific, 
demonstrative,  and  general.  A  specific  legacy  applies  to  certain 
specified  property,  as,  "  my  brown  horse,"  or  lk  my  gold  watch." 
A  demonstrativi  legacy  applies  to  a  certain  amount  o1  money  to 
be   paid   from   a   particular  fund/'     A  general  legacy  applies  to 

Basket  v.  Ha  sell,  17  Otto  602  and  the  fool  note  thereto  In  the  Lawyers' 
Coop   Ed. 

Wallace  v.  Wallace,  28  V  It    I  i«»  (164). 
•Giddlng    v.  S<  ward,  L6  N.  Y    365 

(4C7) 


4C8  DEFINITIONS. 

money,  or  other  personal  property  in  general,  without  designating 
a  specific  article  or  particular  fund.' 

If  it  turns  out  that  the  assets  are  deficient,  a  specific  legacy  will 
not  thereby  suffer  abatement  with  the  general  legacies.2  In  the 
case  of  ademption  (that  is,  wliere  the  subject  of  the  bequest  is 
altered  or  parted  with  or  where  testator  has  provided  for  the 
purpose  of  the  legacy  by  other  means,3)  or  where  the  subject  of 
gift  is  in  fact  inadequate  to  fulfil  the  term  employed  in  the  will, 
a  specific  legacy  cannot  be  made  good  from  the  general  assets. 
Under  these  same  circumstances,  a' demonstrative  legacy  would  be 
made  good,4  thus  faring  in  this  respect  like  a  general  legacy  ;  but 
in  case  of  abatement  it  is  not  scaled  down,  thus  in  this  respect 
faring  like  a  specific  legacy.5 

Testament,  as  in  the  phrase  "  last  will  and  testament,"  or  "  last 
testament,"  is  nowadays  used  with  the  same  meaning  as  the  word 

"will." 

Will.  A  will  is  ons's  solemn  declaration,  in  legal  form,  and 
revocable  during  his  life,  making  a  disposition  of  his  property  to 
take  effect  at  his  death. 


1  Bliven  v   Seymour,  88  N.  Y.  469. 

5  Towle  v.  Swasey,  106  Mass.  100  (106).  3  Williams  on  Executors,  204. 

*  Wilcox  v.  Wilcox,  13  All.  252  (256). 

5  Coleman  v.  Coleman,  2  Ves.  Jr.  639  (640). 


APPENDIX. 


469 


APPENDIX. 


THE    ENGLISH    WILLS   ACT. 
(1  Vict.,  c.  26,  July  3d,  1837.) 

Be  it  enacted,  that  the  words  and  expressions  hereinafter  men- 
tioned, which  in  their  ordinary  signification  have  a  more  confined 
or  a  different  meaning,  shall  in  this  act,  except  where  the  nature  of 
the  provision  or  the  context  of  the  act  shall  exclude  such  construc- 
tion, be  interpreted  as  follows:  (that  is  to  say)  the  "word  ,bwill" 
shall  extend  to  a  testament,  and  to  a  codicil,  and  to  an  appoint- 
ment by  will  or  by  writing  in  the  nature  of  a  will  in  exercise  of  a 
power,  and  also  to  a  disposition  by  will  and  testament  or  devise  of 
the  custody  and  tuition  of  any  child,  by  virtue  of  an  act  passed  in 
the  twelfth  year  of  the  reign  of  King  Charles  the  Second,  intituled 
An  act  for  taking  away  tin  mart  of  wards  ami  liveries  ami  1,  ,t- 
ures,  in  capite  and  by  knights  service,  and  purveyanct ,  and  for 
settling  a  revenue  upon  Ills  Majesty  in  lieu  thereof  or  by  virtue 
of  an  act  passed  in  the  parliament  of  Ireland  in  the  fourteenth 
and  fifteenth  years  of  the  reign  of  King  Charles  the  Second,  inti- 
tuled An  act  for  taking  away  the  court  of  wards  and  lir<  vies  and 
t>  n  a n  s.  in  capite  and  l>;/  knights  service,  and  to  any  other  testamen- 
tary disposition  ;  and  the  words  "real  estate"  shall  extend  to  man- 
ors, advowsons,  messuages,  lands,  tithes,  rents,  and  hereditaments, 
whether  freehold,  customary  freehold,  tenant  right,  customary  or 
copyhold,  or  of  any  other  tenure,  and  whether  corporeal,  incorpo- 
real, or  personal,  and  to  any  undivided  share  thereof,  and  to  any 
estate,  right,  or  interesl  (other  than  a  chattel  interest  i  therein ;  and 
the  words  " personal  estate"  shall  extend  to  leasehold  estates  and 

other  chattel-  real,  ami  also  to  moneys,  shares  of   government   and 

other  funds,  securities  for  money  (nol  being  real  estates),  debts, 
ehosee  in  action,  rights,  err  lit-,  goods,  and  all  other  property  what- 
ver  which  by  law  devolves  upon  the  executor  or  administrator, 
and  to  any  share  or  interest  therein;  and  even  word  importing 
the  singular  number  only  shall  extend  ami  he  applied  t.»  several 

(471) 


472  APPENDIX. 

persons  or  things  as  well  as  one  person  or  thing ;  and  every  word 
importing  the  masculine  gender  only  shall  extend  and  be  applied 
to  a  female  as  well  as  a  male. 

II.  And  be  it  further  enacted,  that  an  act  passed  in  the  thirty- 
second  year  of  the  reign  of  King  Henry  the  Eighth,  intituled  The 
act  of  wills,  wards,  and  primer  seisins,  whereby  a  man  may  de- 
vise two  parts  of  his  land  ;  and  also  an  act  passed  in  the  thirty- 
fourth  and  thirty-fifth  years  of  the  reign  of  the  said  King  Henry 
the  Eighth,  intituled  The  bill  concerning  the  explanation  of  wills  ; 
and  also  an  act  passed  in  the  parliament  of  Ireland,  in  the  tenth 
year  of  the  reign  of  King  Charles  the  First,  intituled  An  act  how 
lands,  tenements,  etc.,  may  be  disposed  by  will  or  otherwise 
and  concerning  wards  and  primer  seisins  /  and  also  so  much  of 
an  act  passed  in  the  twenty-ninth  year  of  the  reign  of  King 
Charles  the  Second,  intituled  An  act  for  prevention  of  frauds 
and  perjuries,  and  of  an  act  passed  in  the  parliament  of  Ireland  in 
the  seventh  year  of  the  reign  of  King  William  the  Third,  intituled 
An  act  for  prevention  of  frauds  and  perjuries,  as  relates  to  de- 
vises or  bequests  of  lands  or  tenements,  or  to  the  revocation  or 
alteration  of  any  devise  in  writing  of  any  lands,  tenements,  or 
hereditaments,  or  any  clause  thereof,  or  to  the  devise  of  any  es- 
tate pur  autre  vie,  or  to  any  such  estates  being  assets,  or  to  nun- 
cupative wills,  or  to  the  repeal,  altering,  or  changing  of  any  will 
in  writing  concerning  any  goods  or  chattels  or  personal  estate,  or 
any  clause,  devise,  or  bequest  therein;  and  also  so  much  of  an 
act  passed  in  the  fourth  and  fifth  years  of  the  reign  of  Queen 
Anne,  intituled  An  act  for  the  amendment  of  the  law  and  the 
better  advancement  of  justice,  and  of  an  act  passed  in  the  parlia- 
ment of  Ireland  in  the  sixth  year  of  the  reign  of  Queen  Anne, 
intituled  An  act  for  the  amendment  of  the  law  and  the  better  ad- 
vancement of  justice,  as  relates  to  witnesses  to  nuncupative  wills ; 
and  also  so  much  of  an  act  passed  in  the  fourteenth  year  of  the 
reign  of  King  George  the  Second,  intituled  An  act  to  amend  the  law 
concerning  common  recoveries,  and  to  explain  and  amend  an  act 
made  in  the  twenty -ninth  year  of  the  reign  of  King  Charles  the  Sec- 
ond, intituled  "  An  act  for  prevention  of  frauds  and  perjuries," 
as  relates  to  estates  pur  autre  vie  ;  and  also  an  act  passed  in  the 
twenty-fifth  year  of  the  reign  of  King  George  the  Second,  inti- 
tuled An  act  for  avoiding  and  putting  an  end  to  certain  doubts 


APPENDIX.  473 

and  questions  relating  to  the  attestation  of  wills  and  codicils  con- 
cerning real  estates  in  that  part  of  Great  Britain  called  England, 
and  in  His  Majesty's  colonies  arid  plantations  in  America,  except 
so  far  as  relates  to  bis  majesty's  colonies  and  plantations  in  Amer- 
ica j  and  also  an  act  passed  in  the  parliament  of  Ireland  in  the 
same  twenty-fifth  year  of  the  reign  of  King  George  the  Second, 
intituled  An  act  for  the  avoiding  and  putting  an  end  to  certain 
doubts  and  questions  relating  to  the  attestations  of  wills  and  cod- 
icils concerning  real  estates  j  and  also  an  act  passed  in  the  fifty- 
fifth  year  of  the  reign  of  King  George  the  Third,  intituled  An  act 
to  remove  certain  difficulties  in  the  disposition  of  copyhold  estates 
by  ivill,  shall  be  and  tbe  same  are  hereby  repealed,  except  so  far 
as  the  same  acts  or  any  of  them  respectively  relate  to  any  wills  or 
estates  pur  autre  vie,  to  which  this  act  does  not  extend. 

III.  And  be  it  further  enacted,  that  it  shall  be  lawful  for  every 
person  to  devise,  bequeath,  or  dispose  of,  by  his  will  executed  in 
manner  hereinafter  required,  all  real  estate  and  all  personal  estate 
which  he  shall  be  entitled  to,  either  at  law  or  in  equity,  at  the 
time  of  his  death,  and  which,  if  not  so  devised,  bequeathed,  or 
disposed  of,  would  devolve  upon  the  heir-at-law,  or  customary  heir 
of  him,  or,  if  he  became  entitled  by  descent,  of  his  ancestor,  or 
upon  his  executor  or  administrator;  and  that  the  power  hereby 
given  shall  extend  to  all  real  estate  of  the  nature  of  customary 
freehold  or  tenant  right,  or  customary  or  copyhold,  notwithstand- 
ing that  the  testator  may  not  have  surrendered  the  same  to  the 
use  of  his  will,  or  not  withstanding  that,  being  entitled  as  heir,  dev- 
isee, or  otherwise,  to  be  admitted  thereto,  he  shall  not  have  been 
admitted  thereto,  or  notwithstanding  that  the  same,  in  conse- 
quence of  the  want  of  a  custom  to  devise  or  surrender  to  the  use 
of  a  will  or  otherwise,  could  not  at  law  have  been  disposed  of  by 
will  if  this  act  had  not  been  made,  or  notwithstanding  that  the 
same,  in  consequence  of  there  being  a  custom  that  a  will  or  a  sur- 
render to  the  use  of  a  will  should  continue  in  force  for  a  limited 
time  only,  or  any  other  special  custom,  could  not  have  been  dis- 
posed of  by  will  according  to  the  power  contained  in  this  act,  if 
tlii-  ad  had  not  been  made;  and  also  to  estates  pur  autre  rie, 
whether  there  shall  or  shall  not  be  any  special  occupant  thereof, 
and  whether  the  same  shall  be  freehold,  customary  freehold,  ten- 
ant right,  customary   or  copyhold,   or  of  any   other  tenure,  and 


474  APPENDIX. 

whether  the  same  shall  be  a  corporeal  or  an  incorporeal  heredita- 
ment ;  and  also  to  all  contingent,  executory,  or  other  future  in- 
terests in  any  real  or  personal  estate,  whether  the  testator  may  or 
may  not  be  ascertained  as  the  person  or  one  of  the  persons  in 
whom  the  same  respectively  may  become  vested,  and  whether  he 
may  be  entitled  thereto  under  the  instrument  by  which  the  same 
respectively  were  created  or  under  any  disposition  thereof  by 
deed  or  will ;  and  also  to  all  rights  of  entry  for  conditions  broken, 
and  other  rights  of  entry  ;  and  also  to  such  of  the  same  estates,  in- 
terests, and  rights  respectively,  and  other  real  and  personal  estate 
as  the  testator  may  be  entitled  to  at  the  time  of  his  death,  not- 
withstanding that  he  may  become  entitled  to  the  same  subse- 
quently to  the  execution  of  his  will. 

IV.1  Provided,  always,  and  be  it  further  enacted,  that  where 
any  real  estate  of  the  nature  of  customary  freehold  or  tenant 
right,  or  customary  or  copyhold,  might  by  the  custom  of  the 
manor  of  which  the  same  is  holden,  have  been  surrendered  to  the 
use  of  a  will,  and  the  testator  shall  not  have  surrendered  the  same 
to  the  use  of  his  will,  no  person  entitled  or  claiming  to  be  en- 
titled thereto  by  virtue  of  such  will,  shall  be  entitled  to  be  ad- 
mitted, except  upon  payment  of  all  such  stamp  duties,  fees,  and 
sums  of  money  as  would  have  been  lawfully  due  and  payable  in 
respect  of  the  surrendering  of  such  real  estate  to  the  use  of  the 
will,  or  in  respect  of  presenting,  registering,  or  enrolling  such 
surrender,  if  the  same  real  estate  had  been  surrendered  to  the  use 
of  the  will  of  such  testator:  Provided  also,  that  where  the  testa- 
tor was  entitled  to  have  been  admitted  to  such  real  estate,  and 
might  if  he  had  been  admitted  thereto,  have  surrendered  the  same 
to  the  use  of  his  will,  and  shall  not  have  been  admitted  thereto, 
no  person  entitled  or  claiming  to  be  entitled  to  such  real  estate  in 
consequence  of  such  will  shall  be  entitled  to  be  admitted  to  the 
same  real  estate  by  virtue  thereof,  except  on  payment  of  all  such 
stamp  duties,  fees,  fine,  and  sums  of  money  as  would  have  been 
lawfully  due  and  payable  in  respect  of  the  admittance  of  such 
testator  to  such  real  estate,  and  also  of  all  such  stamp  duties,  fees, 
and  sums  of  money  as  would  have  been  lawfully  due  and  payable 
in  respect  of  surrendering  such  real  estate  to  the  use  of  the  will, 


1  See  4  &  5  Vict.  c.  35,  §§  88-90. 


APPENDIX.  475 

or  of  presenting,  registering,  or  enrolling  such  surrender,  had  the 
testator  been  duly  admitted  to  such  real  estate,  and  afterwards 
surrendered  the  same  to  the  use  of  his  will ;  all  which  stamp  duties, 
fees,  line,  or  sums  of  money  due  as  aforesaid  shall  be  paid  in  ad- 
dition to  the  stamp  duties,  fees,  fine,  or  sums  of  money  due  or 
payable  on  the  admittance  of  such  person  so  entitled  or  claiming 
to  be  entitled  to  the  same  real  estate  as  aforesaid. 

Y.  And  be  it  further  enacted,  that  when  any  real  estate  of  the 
nature  of  customary  freehold  or  tenant  right,  or  customary  or 
copyhold,  shall  be  disposed  of  by  will,  the  lord  of  the  manor  or 
reputed  manor  of  which  such  real  estate  is  holden,  or  his  steward, 
or  the  deputy  of  such  steward,  shall  cause  the  will  by  which  such 
disposition  shall  be  made,  or  so  much  thereof  as  shall  contain  the 
disposition  of  such  real  estate,  to  be  entered  on  the  court  rolls  of 
such  manor  or  reputed  manor;  and  when  any  trusts  are  declared 
by  the  will  of  such  real  estate,  it  shall  not  be  necessary  to  enter 
the  declaration  of  such  trusts,  but  it  shall  be  sufficient  to  state  in 
the  entry  on  the  court  rolls  that  such  real  estate  is  subject  to  the 
trusts  declared  by  such  will ;  and  when  any  such  real  estate  could 
not  have  been  disposed  of  by  Mill  if  this  act  had  not  been  made, 
the  same  tine,  heriot,  <luv>,  duties,  and  services  shall  be  paid  and 
rendered  by  the  devisee  as  would  have  been  due  from  the  cus- 
tomary heir  in  case  of  the  descent  of  the  same  real  estate,  and  the 
lord  .-hall  as  against  the  devisee  of  such  estate  have  the  same 
remedy  for  recovering  and  enforcing  such  tine,  heriot,  dues, 
duties,  and  services  as  he  is  now  entitled  to  for  recovering  and 
enforcing  the  same  from  or  against  the  customary  heir  in  case  of 
a  descent. 

VI.  And  be  it  further  enacted,  that  if  no  disposition  by  will 
-hill  be  made  of  any  e  I  ite  pur  autre  vie  of  a  freehold  nature, 
the  same  shall  be  chargeable  in  the  hand.-  of  the  heir,  if  it  shall 
come  to  him  by  reason  of  special  occupancy,  as  assets  by  descent 
a-  in  the  case  of  freehold  land  in  fee  simple;  and  in  case  there 
Bhall  be  no  special  occupanl  of  any  estate  /<>/,■,/,///■,  vie,  whether 
freehold  or  customary  freehold,  tenant  right,  customary  or  copy- 
hold, or  of  any  other  tenure,  and  whether  a  corporeal  or  incor- 
poreal hereditament,  it  shall  go  to  the  executor  or  administrator 
of  the  party  that  had  the  e-iate  thereof  by  virtue  of  the  granl  : 

and  if  tin-  -  nne  shall  coine  to  the  executor  or  administrator  either 


476  APPENDIX. 

by  reason  of  a  special  occupancy  or  by  virtue  of  this  act,  it  shall 
be  assets  in  his  hands,  and  shall  go  and  be  applied  and  distributed 
in  the  same  manner  as  the  personal  estate  of  the  testator  or  intes- 
tate. 

VII.  And  be  it  further  enacted,  that  no  will  made  by  any  per- 
son under  the  age  of  twenty-one  years  shall  be  valid. 

VIII.  Provided  also,  and  be  it  further  enacted,  that  no  will 
made  by  any  married  woman  shall  be  valid,  except  such  a  will  as 
might  have  been  made  by  a  married  woman  before  the  passing  of 
this  act. 

IX.  And  be  it  further  enacted,  that  no  will  shall  be  valid  unless 
it  shall  be  in  writing  and  executed  in  manner  hereinafter  men- 
tioned ;  (that  is  to  say),  it  shall  be  signed  at  the  foot  or  end  thereof : 
by  the  testator,  or  by  some  other  person  in  his  presence  and  by  his 
direction ;  and  such  signature  shall  be  made  or  acknowledged  by 
the  testator  in  the  presence  of  two  or  more  witnesses  present  at 
the  same  time,  and  such  witnesses  shall  attest  and  shall  subscribe 
the  will  in  the  presence  of  the  testator,  but  no  form  of  attestation 
shall  be  necessary.  - 

[By  the  Statute  15  and  16  Vict.,  ch.  24,  (1852),  it  was  provided 
as  follows : 

I.  "Where  by  an  act  passed  in  the  first  year  of  the  reign  of  Her 
Majesty  Queen  Victoria,  intituled  An  act  for  the  amendment  of 
the  laws  with  respect  to  wills,  it  is  enacted,  that  no  will  shall  be 
valid  unless  it  shall  be  signed  at  the  foot  or  end  thereof  by  the  tes- 
tator, or  by  some  other  person  in  his  presence,  and  by  his  direction  : 
every  will  shall,  so  far  only  as  regards  the  position  of  the  signature 
of  the  testator,  or  of  the  person  signing  for  him  as  aforesaid,  be 
deemed  to  be  valid  within  the  said  enactment,  as  explained  by  this 
act,  if  the  signature  shall  be  so  placed  at  or  after,  or  following,  or 
under,  or  beside,  or  opposite  to  the  end  of  the  will,  that  it  shall  be 
apparent  on  the  face  of  the  will  that  the  testator  intended  to  give 
effect  by  such  his  signature  to  the  writing  signed  as  his  will,  and 
that  no  such  will  shall  be  affected  by  the  circumstance  that  the 
signature  shall  not  follow  or  be  immediately  after  the  foot  or  end 
of  the  will,  or  by  the  circumstance  that  a  blank  space  shall  inter- 
vene between  the  concluding  word  of  the  will  and  the  signature, 

1  Compare  the  later  statute  in  the  next  paragraph. 


APPENDIX.  477 

or  by  the  circumstance  that  the  signature  shall  be  placed  among 
the  words  of  the  testimonium  clause  or  of  the  clause  of  attesta- 
tion, or  shall  follow  or  be  after,  or  under  the  clause  of  attesta- 
tion, either  with  or  without  a  blank  space  intervening,  or  shall  fol- 
low or  be  after,  or  under,  or  beside  the  names  or  one  of  the  names 
of  the  subscribing  witnesses,  or  by  the  circumstance  that  the  signa- 
ture shall  be  on  a  side,  or  page,  or  other  portion  of  the  paper  or 
papers  containing  the  will,  whereon  no  clause  or  paragraph  or  dis- 
posing part  of  the  will  shall  be  written  above  the  signature,  or  by 
the  circumstance  that  there  shall  appear  to  be  sufficient  space  on 
or  at  the  bottom  of  the  preceding  side  or  page,  or  other  portion  of 
the  same  paper  on  which  the  will  is  written  to  contain  the  signa- 
ture; and  the  enumeration  of  the  above  circumstances  shall  not 
restrict  the  generality  of  the  above  enactment ;  but  no  signature 
under  the  said  act  or  this  act  shall  be  operative  to  give  effect  to 
any  disposition  or  direction  which  is  underneath  or  which  follows 
it,  nor  shall  it  give  effect  to  any  disposition  or  direction  inserted 
after  the  signature  shall  be  made. 

II.  (Relates  to  the  effect  of  the  act  on  wills  already  made). 

III.  (Relates  to  the  interpretation  of  the  word  "will"  under 
the  act). 

IV.  This  act  may  be  cited  as,  "  The  Wills  Act  Amendment  Act, 
1852."] 

X.  And  be  it  further  enacted,  that  no  appointment  made  by  will, 
in  exercise  of  any  power,  shall  be  valid,  unless  the  same  be  executed 
in  manner  hereinbefore  required  ;  and  every  will  executed  in  man- 
ner hereinbefore  required  shall,  so  far  as  respects  the  execution  and 
attestation  thereof,  be  a  valid  execution  of  a  power  of  appointment 
by  will,  notwithstanding  it  shall  have  been  expressly  required  that 
a  will  made  in  exercise  of  such  power  should  be  executed  with 
some  additional  or  other  form  of  execution  or  solemnity. 

XI.  Provided  always,  and  he  it  further  enacted,  that  any  soldier 

being  in  actual  military  service,  or  any  mariner,  or  seaman  being 

:it    -en,  may  dispose  of   his   personal   estate  as  he  might  have  dene 

before  the  making  of  this  act. 

XII.  And  he  it  further  enacted,  thai  this  acl  shall  nol  prejudice 

or  affed    any  of  the   provisions  contained    in  an  ad  passed    in    the 

eleventh  year  "I  the  reign  of  his  majesty  King  George  the  Fourth, 
and  the  fir-t  year  "I  the  reign  of  his  late  majesty  Kiii!_r  WiUiam 


478  APPENDIX. 

the  Fourth,  intituled  An  act  to  amend  and  consolidate  the  laios 
relating  to  the  pay  of  the  royal  navy,  respecting  the  wills  of  petty 
officers  and  seamen  in  the  royal  navy,  and  non-commissioned  offi- 
cers of  marines,  and  marines,  so  far  as  relates  to  their  wages,  pay, 
prize  money,  bounty  money,  and  allowances,  or  other  moneys  pay- 
able in  respect  to  services  in  Her  Majesty's  navy. 

XIII.  And  he  it  further  enacted,  that  every  will  executed  in 
manner  hereinbefore  required  shall  be  valid  without  any  other 
publication  thereof. 

XIV.  And  be  it  further  enacted,  that  if  any  person  who  shall 
attest  the  execution  of  a  will  shall  at  the  time  of  the  execution 
thereof  or  at  any  time  afterwards  be  incompetent  to  be  admitted 
a  witness  to  prove  the  execution  thereof,  such  will  shall  not  on  that 
account  be  invalid. 

XY.  And  be  it  further  enacted,  that  if  any  person  shall  attest 
the  execution  of  any  will  to  whom  or  to  whose  wife  or  husband 
any  beneficial  devise,  legacy,  estate,  interest,  gift,  or  appointment, 
of  or  affecting  any  real  or  personal  estate  (other  than  and  except 
charges  and  directions  for  the  payment  of  any  debt  or  debts), 
shall  be  thereby  given  or  made,  such  devise,  legacy,  estate,  interest, 
gift,  or  appointment  shall,  so  far  only  as  concerns  such  person  at- 
testing- the  execution  of  such  will,  or  the  wife  or  husband  of  such 
person,  or  any  person  claiming  under  such  person  or  wife  or  hus- 
band, be  utterly  null  and  void,  and  such  person  so  attesting  shall 
be  admitted  as  a  witness  to  prove  the  execution  of  such  will,  or  to 
prove  the  validity  or  invalidity  thereof,  notwithstanding  such  devise, 
legacy,  estate,  interest,  gift,  or  appointment,  mentioned  in  such  will. 

XVI.  And  be  it  further  enacted,  that  in  case  by  any  will  any 
real  or  personal  estate  shall  be  charged  with  any  debt  or  debts,  and 
any  creditor,  or  the  wife  or  husband  of  any  creditor,  whose  debt 
is  so  charged,  shall  attest  the  execution  of  such  will,  such  creditor 
notwithstanding  such  charge  shall  be  admitted  a  witness  to  prove  the 
execution  of  such  will,  or  to  prove  the  validity  or  invalidity  thereof. 

XVII.  And  be  it  further  enacted,  that  no  person  shall,  on  ac- 
count of  his  being  an  executor  of  a  will,  be  incompetent  to  be  ad- 
mitted a  witness  to  prove  the  execution  of  such  will,  or  a  witness  to 
prove  the  validity  or  invalidity  thereof. 

XATIII.  And  be  it  further  enacted,  that  every  will  made  by  a 
man  or  woman  shall  be  revoked  by  his  or  her  marriage  (except  a 


APPEXDIX.  479 

will  made  in  exercise  of  a  power  of  appointment,  when  the  real 
or  personal  estate  thereby  appointed  would  not  in  default  of  such 
appointment  pass  to  his  or  her  heir,  customary  heir,  executor,  or 
administrator,  or  the  person  entitled  as  his  or  her  next  of  kin, 
under  the  statute  of  distribution- 1. 

XIX.  And  be  it  further  enacted,  that  no  will  shall  be  revoked 
by  any  presumption  of  an  intention  on  the  ground  of  an  alteration 
ill  circumstances. 

XX.  And  be  it  further  enacted,  that  no  will  or  codicil,  or  any 
part  thereof,  shall  be  revoked  otherwise  than  as  aforesaid,  or  by 
another  will  or  codicil  executed  in  manner  hereinbefore  required, 
or  by  some  writing  declaring  an  intention  to  revoke  the  same,  and 
executed  in  the  manner  in  which  a  will  is  hereinbefore  required  to 
be  executed,  or  by  the  burning,  tearing,  or  otherwise  destroying 
the  same  by  the  testator,  or  by  some  person  in  his  presence  and  by 
his  direction,  with  the  intention  of  revoking  the  same. 

XXI.  Ami  be  it  further  enacted,  that  no  obliteration,  interlinea- 
tion, or  other  alteration  made  in  any  will,  after  the  execution  thereof, 
shall  be  valid  or  have  any  effect  except  so  far  as  the  words  or  effect 
of  the  will  before  such  alteration  shall  not  be  apparent,  unless  such 
alteration  shall  be  executed  in  like  manner  as  hereinbefore  is  re- 
quired for  the  execution  of  the  will ;  but  the  will,  with  such  alter- 
ation as  part  thereof,  shall  be  deemed  to  be  duly  executed  if  the 

nature  of  the  testator  and  the  subscription  of  the  witnesses  be 
made  in  the  margin,  or  on  some  other  part  of  the  will  opposite  or 
near  to  such  alteration,  or  at  the  foot  or  end  of  or  opposite  to  a 
memorandum  referring  to  such  alteration,  and  written  at  the  end 
or  -nine  oiher  pari  of  the  will. 

XXII.  And  licit  further  enacted,  thai  no  will  or  codicil  or  any 
pari  thereof,  which  shall  be  in  any  manner  revoked,  shall  he  re- 
vived otherwise  than  by  (he  re-execution  thereof,  or  by  a  codicil 
executed  in  manner  hereinbefore  required,  and  showing  an  inten- 
tion to  revive  the  3ame;  and  when  any  will  or  codicil  which  shall 
he  partly  revoked,  and  afterwards  wholly  revoked,  shall  he  re- 
vived, Mich  revival  -hall  not  extend  to  80  much  thereof  as  shall 
have  been  revoked  before  the  revocation  of  the  whole  thereof, 
unle--  an  intention  to  the  contrary  shall  be  shown. 

XXIII.  And  hi' it  further  enacted,  thai  no  conveyance  or  other 

ad  made  or  done  iquentlj    to  the  execution  of  a  will  of  or  re- 


480  APPENDIX. 

lating  to  any  real  or  personal  estate  therein  comprised,  except  an 
act  by  which  such  will  shall  be  revoked  as  aforesaid,  shall  prevent 
the  operation  of  the  will  with  respect  to  such  estate  or  interest  in 
such  real  or  personal  estate  as  the  testator  shall  have  power  to 
dispose  of  by  will  at  the  time  of  his  death. 

XXIV.  And  be  it  further  enacted,  that  every  will  shall  be  con- 
strued, with  reference  to  the  real  estate  and  personal  estate  com- 
prised in  it,  to  speak  and  take  effect  as  if  it  had  been  executed 
immediately  before  the  death  of  the  testator,  unleas  a  contrary  in- 
tention shall  appear  by  the  will. 

XXV.  And  be  it  further  enacted,  that,  unless  a  contrary  inten- 
tion shall  appear  by  the  will,  such  real  estate  or  interest  therein  as 
shall  be  comprised  or  intended  to  be  comprised  in  any  devise  in 
such  will  contained,  which  shall  fail  or  be  void  by  reason  of  the 
death  of  the  devisee  in  the  lifetime  of  the  testator,  or  by  reason  of 
such  devise  being  contrary  to  law  or  otherwise  incapable  of  taking 
effect,  shall  be  included  in  the  residuary  devise  (if  any)  contained 
in  such  will. 

XXVI.  And  be  it  further  enacted,  that  a  devise  of  the  land  of 
the  testator,  or  of  the  land  of  the  testator  in  any  place  or  in  the 
occupation  of  any  person  mentioned  in  his  will,  or  otherwise  de- 
scribed in  a  general  manner,  and  any  other  general  devise  which 
would  describe  a  customary,  copyhold,  or  leasehold  estate  if  the 
testator  had  no  freehold  estate  which  could  be  described  by  it, 
shall  be  construed  to  include  the  customary,  copyhold,  and  lease- 
hold estates  of  the  testator,  or  his  customary,  copyhold,  and  lease- 
hold estates,  or  any  of  them,  to  which  such  description  shall  ex- 
tend, as  the  case  may  be,  as  well  as  freehold  estates,  unless  a  con- 
trary intention  shall  appear  by  the  will. 

XXVII.  And  be  it  further  enacted,  that  a  general  devise  of  the 
real  estate  of  the  testator,  or  of  the  real  estate  of  the  testator  in 
any  place  or  in  the  occupation  of  any  person  mentioned  in  his  will, 
or  otherwise  described  in  a  general  manner,  shall  be  construed  to 
include  any  real  estate,  or  any  real  estate  to  which  such  descrip- 
tion shall  extend  (as  the  case  may  be),  which  he  may  have  power 
to  appoint  in  any  manner  he  may  think  proper,  and  shall  operate 
as  an  execution  of  such  power,  unless  a  contrary  intention  shall 
appear  by  the  will ;  and  in  like  manner  a  bequest  of  the  personal 
estate  of  the  testator,  or  any  bequest  of  personal   property  de- 


APPENDIX.  481 

scribed  in  a  general  manner,  shall  be  construed  to  include  any  per- 
sonal  estate,  or  any  personal  estate  to  which  such  description  shall 
exteud  (as  the  case  may  be),  which  he  may  have  power  to  appoint  in 
any  manner  he  may  think  proper,  and  shall  operate  as  an  execution 
of  such  power,  unless  a  contrary  intention  shall  appear  by  the  will. 

XXVIII.  And  be  it  further  enacted,  that  where  any  real  estate 
shall  be  devised  to  any  person  without  any  words  of  limitation, 
such  devise  shall  be  construed  to  pass  the  fee  simple,  or  other  the 
whole  estate  or  interest  which  the  testator  had  power  to  dispose 
of  by  will  in  such  real  estate,  unless  a  contrary  intention  shall 
appeal-  by  the  will. 

XXIX.  And  be  it  further  enacted,  that  in  any  devise  or  be- 
quest of  real  or  personal  estate  the  words  "  die  without  issue,"  or 
"die  without  leaving  issue,"  or  "  have  no  issue,"  or  any  other 
words  which  may  import  either  a  want  or  failure  of  issue  of  any 
person  in  his  lifetime  or  at  the  time  of  his  death,  or  an  indefinite 
failure  of  his  issue,  shall  be  construed  to  mean  a  want  or  failure 
of  issue  in  the  lifetime  or  at  the  time  of  the  death  of  such  person, 
and  not  an  indefinite  failure  of  his  issue,  unless  a  contrary  inten- 
tion shall  appear  by  the  will,  by  reason  of  such  person  having  a 
prior  estate  tail,  or  of  a  preceding  gift,  being,  without  any  implica- 
tion arising  from  such  words,  a  limitation  of  an  estate  tail  to  such 
person  or  issue,  or  otherwise :  Provided,  that  this  act  shall  not  ex- 
tend to  cases  where  such  words  as  aforesaid  import  if  no  issue 
described  in  a  preceding  gift  shall  be  horn,  or  if  there  shall  be  no 
issue  who  shall  live  to  attain  the  age  or  otherwise  answer  the  de- 
scripl  ion  required  for  obtaining  a  vested  estate  by  a  preceding  gill 

to  ,-in-li  issue. 

XXX.  And  be  it  further  enacted,  that  where  any  real  estate 
(other  than  or  not  being  a  presentation  to  a  church)  shall  he  de- 
vised to  any  trustee  or  executor,  such  devise  shall  be  construed  to 
pass  the  fee  simple  or  other  the  whole  estate  or  interest  which  the 

testator  had  power  to  dispose  of  by  will  in  such  real  estate,  unless 

a  definite  term  of  years,  absolute  or  determinable,  or  an  estate  of 
freehold,  shall  thereby  he  given  to  him  expressly  or  by  implication. 

XXXI.  And  be  it.  further  enacted,  thai  where  any  real  estate 

Shall   be  devised   to  a  trustee,  without  any  express   limitation   of 

the  e  tate  to  he  taken  by  Buch  trustee,  and  the  beneficial  interest 
in  such  real  estate, or  in  the  Burplus  rents  and  profits  thereof,  shall 


482  APPENDIX. 

not  be  given  to  any  person  for  life,  or  such  beneficial  interest  shall 
be  given  to  any  person  for  life,  but  the  purposes  of  the  trust  may 
continue  beyond  the  life  of  such  person,  such  devise  shall  be  con- 
strued to  vest  in  such  trustee  the  fee  simple,  or  other  the  whole 
legal  estate  which  the  testator  had  power  to  dispose  of  by  will  in 
such  real  estate,  and  not  an  estate  determinable  when  the  purposes 
of  the  trust  shall  be  satisfied. 

XXXII.  And  be  it  further  enacted,  that  where  any  person  to 
whom  any  real  estate  shall  be  devised  for  an  estate  tail  or  an 
estate  in  quasi  entail  shall  die  in  the  lifetime  of  the  testator  leav- 
ing issue  who  would  be  inheritable  under  such  entail,  and  any 
such  issue  shall  be  living  at  the  time  of  the  death  of  the  testator, 
such  devise  shall  not  lapse,  but  shall  take  effect  as  if  the  death  of 
such  person  had  happened  immediately  after  the  death  of  the  tes- 
tator, unless  a  contrary  intention  shall  appear  by  the  will. 

XXXIII.  And  be  it  further  enacted,  that  where  any  person 
being  a  child  or  other  issue  of  the  testator  to  whom  any  real  or 
personal  estate  shall  be  devised  or  bequeathed  for  any  estate  or  in- 
terest not  determinable  at  or  before  the  death  of  such  person  shall 
die  in  the  lifetime  of  the  testator  leaving  issue,  and  any  such  issue 
of  such  person  shall  be  living  at  the  time  of  the  death  of  the  tes- 
tator, such  devise  or  bequest  shall  not  lapse,  but  shall  take  effect 
as  if  the  death  of  such  person  had  happened  immediately  after 
the  death  of  the  testator,  unless  a  contrary  intention  shall  appear 
by  the  will. 

XXXIY.  And  be  it  further  enacted,  that  this  act  shall  not  ex- 
tend to  any  will  made  before  the  first  day  of  January,  one  thou- 
sand eight  hundred  and  thirty-eight,  and  that  every  will  re-exe- 
cuted or  republished,  or  revived  by  any  codicil,  shall  for  the  pur- 
poses of  this  act  be  deemed  to  have  been  made  at  the  time  at 
•which  the  same  shall  be  so  re-executed,  republished,  or  revived ; 
and  that  this  act  shall  not  extend  to  any  estate  pur  autre  vie  of 
any  person  who  shall  die  before  the  first  day  of  January,  one 
thorn  and  eight  hundred  and  thirty -eight. 

XXXV.  And  be  it  further  enacted,  that  this  act  shall  not  ex- 
tend to  Scotland. 

XXXVI.  And  be  it  further  enacted,  that  this  act  may  be 
amended,  altered,  or  repealed  by  any  act  or  acts  to  be  passed  in 
this  present  session  of  parliament. 


INDEX. 


483 


INDEX. 

(The  references  are  to  pages.) 


ACCIDENT.     See  Revocation. 
ACCRUER,  457. 
ACKNOWLEDGMENT.     See  Execution. 

AGE. 

See  Testamentary  Incapacity. 

"  of  age,"  bow  computed.     See  Infancy. 

ALIENAGE. 

effect  on  testamentary  capacity,  10. 

ALTERATION. 

of  will.     See  Revocation. 

of  testator's  circumstances, 

See  Revocation. 

effect  of  alterations,  440. 

how  effected, 

See  Codicil. 

ATTESTATION. 

denned,  267. 

distinguished  from  signing,  267. 

nnder  1  Vict.  c.  2G,  2. 

ATTESTATION  CLAUSE. 

form,  purpose,  .'iii<l  effect,  281. 
where  witnesses  forget  facts, 

cases,  282  285. 
where  they  fraudulently  deny  facts,  280. 
probate  refused  though  clause  full,  280. 
probate  granted  against  testimony, 

case,  287  289. 
no  attestation  clause  ;  witnesses  dead, 

case,  200-201 . 

ATTORNEY.     See  Undue  Iotli  bwob. 


(485) 


486  INDEX. 

BLINDNESS.     See  Testamentary  Incapacity. 

BURDEN  OF  PROOF,  113-117. 

(1).  Testamentary  capacity,  34-38,  54-58,  60-70,  72,  95,  116- 
117,  250-264. 
distinction  between   permanent  and  temporary  unsound- 
ness, 72-75. 
of  mental  unsoundness,  16.  note  2. 
drunkenness,  20,  21. 
settled  insanity,  21. 
temporary  cause,  21. 
declarations.     See  Evidence. 
(2).  Undue  influence,  96-97,  113-117. 
where  testator  feeble,  95,  116-117. 
testator's  relations  with  beneficiary,  171-202. 
where  confidential,  fiduciary,  or  illicit  relations,  96-97. 
See  Undue  Influence. 
(3).  Fraud,  96-97. 

(4).  Revocation, 

See  Revocation  ;  Evidence. 

BURNING.     See  Revocation. 

CANCELLING.     See  Revocation. 

CAPACITY. 

to  make  will, 

See  Testamentary  Incapacity. 

to  take  by  devise  or  bequest, 

See  Incapable  Beneficiaries. 

CAPITA,  PER,  455. 

CHARITY,  gifts  to,  427. 

CHATTELS,  449. 

CHILDREN,  455  et  seq. 

early  right  in  father's  personal  property,  1. 

See  Testamentary  Incapacity  ;  Revocation. 

CLASS,  gift  to,  451,  452,  454,  455. 

CODICIL. 

nature  and  effect,  309. 

and  will,  together  make  one  instrument,  309. 

is  part  of  will,  441,  note  3. 

how  far  a  revocation,  444,  note  3. 


INDEX.  487 

COEECION.     See  Undue  Influence. 

CONDITIONS,  427,  and  note  3  ;  437. 

CONDITIONAL  WELL.     See  Will. 

CONFESSOE.     See  Undue  Influence. 

CONFIDENTIAL  KELATIONS.     See  Undue  Influence. 

CONFLICT  OF  LAWS,  436. 

CONSIDEEATION.  • 

See  Contracts  concerning  Wills. 

CONSTEUCTION. 

meaning,  4. 

blind  or  obscure  writing, 

reference  to  decipher,  383,  note  5. 

CONSTEUCTION  OF  WILLS. 

compared  with  construction  of  deeds,  438. 

rule  of,  defined,  439. 

where  legacy  repeated,  440. 

and  presumptions,  distinguished,  439. 

and  rules  of  law,  distinguished,  440. 

always  subject  to  intent,  439,  441. 

and  principles  of  interpretation,  distinguished,  441. 

general  terms  restricted  by  context,  441,  note  3. 

meaning  of  "  intent,"  441. 

General  Rules. 
entire  will  construed  together,  441. 
effect  to  be  given  to  every  part,  441. 
intestacy  to  be  avoided,  442. 
when  later  provisions  override  earlier,  442. 
technical  terms,  how  construed,  442. 
words  interpreted  in  primary  sense,  442. 
conflict  of  laws,  436,  442. 
when  will  takes  effect,  442. 
of  what  dale  will  "  speaks,"  442. 
statutory  provisions,  443,  444. 
disinherison  of  heirs,  444. 
implications  and  express  provisions,  445. 

effect  of  inadequate  reasons,  absurd  provisions,  etc.,  445. 

words  repeated  or  changed,  445, 
literal  or  tree  meaning,  when,  1 15, 


488  INDEX. 

CONSTRUCTION  OF  WILLS— continued. 
Special  Rales. 

(a).  Provisions  concerning  land, 

primd  facie  meaning  of  various  terms,  446. 

general  devise  carries  fee,  446. 

rule  in  Shelley's  case,  446. 

"  or  "  when  read  "  and,"  447. 

"  death  without  issue,"  447. 

estates  tail,  447. 

vesting,  448. 

widow's  dower,  provisions  in  lieu  of,  448. 

(6).  Provisions  concerning  personal  property,  448. 
primd  facie  meaning  of  various  terms,  448,  449. 
vesting,  449. 

(c).  Lapse,  450,  451. 

charges,  450,  451. 
(d).  Residuary  gifts,  451,  452. 
(e).  Tenancy,  452. 
(f).  Provisions  employing  terms  of  relationship, 

primd  facie  meaning  of  various  terms,  452—455. 

children,  number  named  erroneous,  453. 

"  children,"  what  date  regarded,  453-4. 

gift  to  children,  when  subject  to  open,  454. 

children  in  ventre  sa  mere,  454. 

when  children  take  per  capita  and  not  per  stirpes,  454-455. 

(g).  Execution  of  powers, 
rules,  455. 

(h).  Trusts, 

rules,  455. 

precatory  words,  456. 
(i).  Substitution  and  survivorship, 

rules,  457. 
(j).  Equitable  conversion, 

rules,  457. 

CONTINGENT  WILL. 

See  Will  (Conditional  Will). 

CONTRACTS  CONCERNING  WILLS,  408. 
power  to  agree  concerning  will,  408. 
form  of  such  contracts,  408. 


INDEX.  489 

CONTRACTS  CONCERNING  WILLS— continued. 

effect  on  will  made,  408. 

consideration,  408-409. 

as  to  personalty  and  realty,  408-411. 

legal  and  equitable  relief,  408-411. 

effect  of  Statute  of  Frauds,  408-411. 

specific  performance,  408-411. 

effect  on  revocability  of  will,  410-411. 

bearing  on  joint  wills,  411. 

agreement  to  devise,  specific  performance, 

case,  411. 
agreement  to  give  legacy,  414. 
agreement  not  to  devise, 

case,  414-416. 
oral  agreement  to  devise, 

Statute  of  Frauds, 

case,  416. 
oral  agreement  to  make  legacy  ;  whether  writing  necessary,  418. 
executed  contract  to  devise,  418-420. 
theory  of  equitable  relief,  420. 
special  relief  in  equity,  420. 

CONTRACT  TO  BUY  LAND,  446. 
CONVEYANCE.     See  Revocation. 

CORPORATION. 

as  beneficiary,  428. 

COVERTURE. 

disabilities  and  the  four  exceptions,  8. 

reasons  for  disability,  8. 

present  English  statute,  9. 

American  laws,  9. 

clause  against  anticipation,  9. 

CRIME. 

effect  on  testamentary  capacity,  9. 

DEAF  AND  DUMB. 

See  Ti:sT\MKNTAitY  Incapacity. 

DEATH 

8  e  <  Ihapteb  VI 


490  INDEX. 

DECLAKATIONS. 

of  testator, 

as  evidence  of 

mental  unsoundness, 

case,  82-91. 
revocation,  82-91. 
fraud,  82-91. 
undue  influence,  82-91. 
to  prove  intent  in  revocation,  325,  note  4. 
DEED. 

will  in  form  of, 

See  "Will. 
DEFINITIONS,  467,  468. 
'  will,  468. 
testament,  468. 
devise,  467. 
executory  devise,  467. 
bequest,  467. 
legacy,  467. 

general,  specific,  demonstrative, 
gift  causa  mortis,  467. 
holographic  will,  467. 

(See  also  under  special  heads  in  Index.) 

DELIRIUM,  20-21. 

See  Evidence. 
DELUSIONS,  15-16,  54. 

when  insane  and  when  not,  38-54. 
illustration,  23. 
affecting  will  or  not,  18,  19. 
cases,  38-58,  78-82. 

DEMENTIA,  19,  20. 
DESCRIPTION,  450. 
DESTRUCTION.     See  Revocation. 
DEVISE,  426,  427,  428,  429,  446. 

See  Testamentary  Incapacity. 
DOMICIL.     See  Conflict  of  Laws. 

DRUNKENNESS. 

effect  on  capacity,  20. 

See  Evidence. 

DUMB  PERSON.     See  Testamentary  Incapacity. 


INDEX.  491 

EQUITY.     See  Contracts  concerning  "Wills. 
ERASURES,  440. 

EVIDENCE. 

(1)  of  testator's  mental  condition,  211-213 
testator's  conduct,  78-82. 
delusions,  38-^48. 

peculiar  provisions  in  will,  23,  24. 

insanity,  54-58,  59,  60-72. 

intrinsic,  22,  24,  54-58,  59,  60-70. 

idiocy,  34-38. 

irrational  will  as,  22,  23. 

rational  will  as,  22. 

where  testator  deaf,  dumb,  or  blind,  28-34. 

belief  in  witches,  etc.,  24,  76-78. 

declarations,  how  far  admissible,  82-91. 

drunkenness,  72. 

suicide  as,  17. 

See  Burden  of  Proof  ;  Presumption  ;  Witnesses. 

(2)  of  due  execution,  54-70. 
testator's  declarations,  211-213. 

(3)  of  undue  influence, 
relevant  facts,  95-213. 
kinds  of  evidence,  211-213. 

testator's  declarations,  117-160,  169-171,  211-213. 
testator's  relations  with  beneficiary,  171-173. 
admissions  of  legatee,  123-135,  160-168. 
attorney  as  legatee,  203-211. 
draughtsman  as  legatee,  203-211. 
confidential  relations,  96-97. 
fiduciary  relations,  96-97. 
illicit  relations,  97. 

See  Burden  of  Proof. 

(4)  of  fraud,  211-213. 

(5)  of  revocation,  326-328. 
declarations,  211-21 :5. 

(6)  concerning  competency  of  minor  witness,  293-296. 

(7)  extrinsic  evidence  on  construction, 

distinguished  from  intrinsic,  459. 
purpose,  459. 


492  INDEX. 

EVIDENCE— continued. 

restrictions,  459. 

how  far  admitted,  459. 

admissible  to  decipher,  459. 

or  to  translate,  459. 

or  to  show  local  usage,  459. 

nicknames,  459. 

technical  terms,  459,  note  2. 

specific  descriptions  identified,  460. 

how  far  allowed,  460. 
ambiguous  terms,  460. 

if  primary  meaning  sensible,  460,  461. 

two  classes,  461. 
evidence  of  underlying  facts,  461-464. 

when  admissible,  462-464. 
direct  evidence  of  intent,  461,  464-466 

when  admissible,  464-466. 

equivocations,  462,  note  2  ;  465. 

latent  and  patent  ambiguities,  465 
general  summary  of  rules,  465,  466. 

EXECUTION. 
meaning,  4. 
requisites,  214. 
scope  of  discussion,  214. 

order  in  which  statutory  steps  taken,  214-215. 
bearing  of  statutes,  214. 
purpose  of  formalities,  1,  3. 

(1).  Signing  by  testator,  1,  2,  215-236. 
(a).  Personal  signature,  215. 
(6).  Signature  by  another,  216,  224. 
signing  by  mark,  215. 
signing  by  initials,  215. 
signing  by  seal  on  wax,  215. 

when  this  not  sufficient,  215,  note  3. 
signing  by  first  name  only,  215. 
signing  only  part  of  name,  216. 
wrong  name  round  mark,  216. 
order  of  making  mark  and  writing  name,  216. 
hand  guided,  216. 
when  can  sign  by  another,  216. 


INDEX.  493 

EXECUTION— continued. 

signature,  what  is  a  good, 
general  discussion, 

case,  217-222. 
by  stamp, 

case,  222-223. 
mark,  wrong  name, 

case,  223. 
position  of  signature,  223-236. 
varying  statutes,  223. 
when  not  specified,  224. 

cases,  224-229. 
when  specified, 

English  statute,  224,  note. 

signature  "  at  end  of  will," 
cases,  229-236. 

(2).  Making  or  acknowledgment  of  signature,  236-241. 
varying  statutes,  236. 

(a).  Signed  before  witnesses,  237. 

(b).  Acknowledgment  of  signature,  237. 
when  to  be  made,  237. 
need  not  be  in  express  words, 

case,  237-239. 
signature  must  be  visible, 

case,  239-241. 

(3).  Declaration  of  the  will, 

varying  statutes,  241-242. 

when  not  required,  illustration,  242. 

when  required, 

cases,  242-249. 
wh;it  satisfies  the  requirement,  242-249. 

(4).  Bequest  to  witnesses,  264-267. 
varying  statutes,  264 

what  request  satisfies  requirement, 
cases,  265-267. 

(5).  Animus  testandi, 

meaning  of  term,  249. 
if  intent  absent,  no  valid  execution, 
eases,  250-261. 


494  INDEX. 

EXECUTION— continued. 

(6).  Attestation  and  signing  by  witnesses,  267-281. 

varying  statutes,  267. 

distinction  between  attestation  and  signing,  267. 
signing,  267-272. 
by  mark,  267. 
by  descriptive  term,  267. 
wrong  name,  when  not  enough, 

case,  268. 
by  initials, 

case,  269. 
written  by  another, 

case,  270-272. 
position  of  signatures,  272. 
varying  statutes,  272. 
where  position  not  specified,  general  principles, 

cases,  273-275. 
where  position  is  specified,  275. 

varying  statutes,  275. 

illustrations,  275. 

(7).  In  "presence  of  testator," 
varying  statutes,  275. 
illustrations  of  phrase,  276-280. 
statement  of  the  rule,  280-281. 

(8).  Attestation  clause, 

purpose,  form,  and  effect,  281. 

cases,  282-291. 
probate  before  testator's  death,  result,  437. 
See  Attestation  Clause. 

EXECUTOR.     See  Will. 

EXECUTORY  DEVISE.     See  Definitions. 

FEME  COVERT.     See  Covekture. 

FEUDAL  SYSTEM. 

influence  in  early  law  of  wills,  1. 

FIDUCIARY  RELATIONS.    See  Undue  Influence. 

FINES,  8. 


INDEX.  495 


FRAUD. 

surreptitious  substitution,  95. 

case,  98. 
in  execution,  effect,  95. 

testator's  declarations  concerning,  see  Evidence. 
burden  of  proof,  see  Evidence. 

GENERAL  LEGACY.     See  Definitions. 

GIFT. 

causa  mortis, 

See  Definitions. 

GUARDLAN".     See  Undue  Influence. 

HOLOGRAPH.     See  Definitions. 
HUSBAND  AND  WIFE.     See  Feme  Covert. 

IDIOCY,  15. 

inquisition,  effect  of, 
case,  34-38. 

ILLEGAL  PROVISIONS,  426-427. 

perpetuities,  427,  440. 
charitable  gifts,  427. 
against  public  policy,  427. 
dower  ;  curtesy,  427. 

INCAPABLE  BENEFICIARIES,  427-429. 
aliens,  427. 
corporations,  428. 
subscribing  witnesses,  428. 
against  public  policy,  428. 

INCORPORATION  BY  REFERENCE,  426. 

INFANCY. 

former  law  of  England,  5. 

age  required  in  testator  at  common  law,  5. 

by  1  Vict.  c.  26,  5. 

in  American  States,  5. 
rule  concerning  incapacity  not  arbitrary,  6. 
"  of  ago,"  how  computed, 

cases,  6-7. 


496  INDEX. 

INFANT. 

under  statutory  age  cannot  make  will,  5,  note  5. 
on  what  day  conies  of  age,  6. 
care  exercised  in  will  of,  6,  note  2. 

INFANTS. 

excepted  in  Stat,  of  Wills,  1. 

INSANITY,  12-24. 

See  Testamentary  Incapacity. 

INTERLINEATIONS,  440. 

LAND,  446. 

LAPSE,  450. 

LEGACY.     See  Definitions. 

LEX.     See  Conflict  of  Laws. 

LOCAL  LAWS.     See  Conflict  of  Laws. 

LOST  WILL.     See  Will. 

LOUISIANA. 

peculiarities  of  law  of, 
case,  232-236. 

LUCID  INTERVAL,  16. 

cases,  54-62. 
burden  of  proof, 
cases,  60-70. 

LUNACY,  15-17. 

See  Testamentary  Incapacity. 

MARINER.     See  Nuncupate  Will. 

MARK,  signing  by, 

See  Execution. 

MARRIAGE.     See  Revocation. 

MARRIED  WOMEN. 

right  to  make  wills, 
common  law,  7. 
exclusion  from  32  and  34  Hen.  VHT.,  8. 
reason  for  disability,  8. 
excepted  in  statutes  of  wills,  1. 

See  Coverture. 


index.  497 

MEMORY,  SOUND.     See  Testamentary  Incapacity. 

MIND,  SOUND.     See  Testamentary  Incapacity. 

MISTAKE  IN  EXECUTION,  437. 

MONOMANIA,  18-19. 

affecting  will  or  not,  18-19. 

MURDER,  of  testator  by  beneficiary,  428. 

NUNCUPATIVE  WILL,  429-436. 
explained,  429,  430. 
meaning  in  Louisiana,  429. 
three  periods,  429. 

requirements  under  each,  429-430. 
the  privileged  classes,  sailors  and  soldiers,  430,  431„ 
act  only  on  personal  property,  430. 
rogaiio  testium  defined,  431. 

case,  432-43G. 

OBLITERATION.     See  Revocation. 

OPINION  AS  EVIDENCE. 

See  Witnesses  ;  Evidence. 

PAROL  EVIDENCE,  458. 

PARTIAL  INSANITY,  18. 

PENCIL,  WLLL  IN.     See  Execution. 

PER  STIRPES,  per  capita,  455. 

PERSONAL  PROPERTY,  448. 

PRACTICE. 
rides  of,  4. 

PRESENCE,  of  testator,  of  witnesses. 

See  Execution. 
PRESUMPTION 
defined,  439. 
where  blanfe  in  will,  439. 
where  repeated  Legacy,  110. 
where  [nterlirw.-Mions  or  ;ili<  rations,  440 
where  will  rational,  6 1  70. 
':■' 


498  INDEX. 

PRESUMPTION— continued. 

where  drunkenness  proved,  72. 

where  will  apparently  duly  executed,  250-264. 

where  testator  blind,  etc.,  95,  264. 

where  idiocy  found  by  inquisition,  34-38. 

where  testator  in  asylum,  54-58,  59,  60-70. 

where  insanity  found  by  inquisition,  70-72. 

where  permanent  and  where  temporary  unsoundness  shown,  20, 
21,  72-75. 

where  confidential  relations,  96-97. 

general,  of  capacity,  16,  note  2. 

competency  of  minor  witness 
case,  293-296. 

See  Evidence  (Burden  of  Proof). 
PROBATE. 

meaning,  4. 

scandalous  matter,  striking  out,  437. 

REAL  PROPERTY,  446. 

REPUBLICATION. 

meaning  of  term,  4,  376. 
methods  of,  376. 
by  reference  in  codicil,  376. 
by  re-execution,  376. 
effect  of  on  will,  376. 
what  reference  required,  376-377. 
will  republished  by  reference,  how  proved,  377. 
republication  by  re-execution, 
case,  377-381. 

RESTRAINT. 
meaning,  4. 

RESTRICTION,  39,  426-429. 

REVOCATION. 
meaning,  4. 
methods  of,  309-376. 
varying  statutes,  309. 

testator's  declarations  concerning,  see  Declabation. 
to  revoke,  testator  must  have  sound  mind,  309,  note  1. 
and  not  be  subject  to  undue  influence,  309,  note  1. 


INDEX.  499 

KEVOCATION— continued. 
to  nullify  revocation, 

when  undue  influence  must  exist,  309,  note  1. 
effect  of  on  previous  will, 

case,  370-376. 
of  will,  when  revokes  codicil,  309,  note  3. 
written  will  not  revoked  by  nuncupative,  309,  note  4. 
by  codicil,  309. 
by  subsequent  will,  309. 
by  a  i  instrument  not  testamentary,  310. 

case,  310-311. 
by  marriage, 

cases,  312-318. 

var3ring  statutes,  311,  note. 

how  affected  by  married  women's  statutes,  6. 
cases,  313-315. 

of  widow,  317. 
by  marriage  and  birth  of  issue,  318. 
by  subsequent  birth  of  child,  3. 

case,  319-321. 

where  living  child  not  provided  for,  319. 
whether  by  lapse  of  time, 

case,  321-324. 
by  change  of  testator's  circumstances,  321-324. 
by  disposal  of  property,  32+. 
by  burning,  tearing,  cancelling,  obliterating,  or  destroying,  324. 

intent  necessary,  324,  325. 

of  part  of  will,  324,  note  2. 

varying  statutes,  325. 

destroying  wrong  paper,  325. 

by  mistake,  325. 

act  not  completed,  325. 

no  witness  required,  when,  325,  note  1. 

by  act  of  another,  325,  note  2 
capacity  required,  degree,  325,  326. 
when  due  to  mistake  concerning  facts,  326. 
only  slight  burning, 

ease,  350  352. 
signature  torn  off, 

case,  852-853. 
signature  scratched  away, 

case,  353. 


500  INDEX. 

REVOCATION— continued. 
tearing  off  seal,  353. 
tearing  while  insane, 

case,  329-330. 
destruction  by  another  without  testator's  consent, 

case,  330-334. 
act  of  revocation  not  completed, 

case,  334-335. 
torn  partly  through, 

case,  335-341. 
intention,  but  no  act, 
case,  341-342. 
%     tearing,  surreptitious  preservation, 
case,  342-344. 
burning,  surreptitious  preservation, 

cases,  344-348,  349-350. 
tearing,  no  animus  revocandi, 

case,  348-349. 
cutting  out  signature,  353. 
cancellation  of  signature3, 

case,  353-356. 
will  not  found — general  presumption,  356. 
insane  testator,  no  presumption, 

case,  356-358. 
will  not  found— rebutting  presumption,  356. 
when  no  presumption, 

case,  358-361. 
presumption,  intrinsic  and  extrinsic  evidence, 
case,  361-364. 
will  not  found — presumption  rebutted, 
case,  364-366. 
where  loss  explained, 
case,  366-367. 
will  found  mutilated  ;  presumption, 

case,  367-369. 
will  found  mutilated  with  old  papers, 
case,  369-370. 
RULES  OF  LAW,  440. 

SAILOR.     See  Nuncupative  Will- 
SANITY.     See  Testamentary  Incapacity. 


LNDEX.  501 

SEAL. 

in  execution,  281,  note  2. 

SEAMAN.     See  Nuncupative  Will. 

SENILE  DEMENTIA.     See  Dementia, 

SIGNATURE.     See  Execution. 

SIGNING.     See  Execution. 

SOLDIER.     See  Nuncupative  Will. 

SOUND  MIND. 

defined,  38-48. 

SPECIFIC  LEGACIES.     See  Definitions. 

SPIRITUALISM,  belief  in, 

See  Testamentakv  Incapacity. 

STATUTES  (English). 

32  Hen.  Vm.  eh.  1;  1,  5,  8. 
31  Hen.  VTH.  ch.  5;  1,  5,  8. 

St.  of  Frauds,  1,  83,  217,  218,  219,  224,  225,  235,  291,  301,  324, 

345,  408,  409,  416,  417. 
25  Geo.  H.  c  6;  301,  302,  303. 
53  Geo.  HI.  eh.  127;  11. 
11  Geo.  IV.,  211. 
1  Will.  IV.  ch.  40;  211. 
7  Will.  IT.,  371. 
St.  of  Wills,  1  Vict.  ch.  26;  2,  5,  9,  218,  222,  237,  303,  324,  371, 

443,  451,  452,  455. 
83  Vict  c  14,  sec.  2;  10. 

33  and  34  Vict.  ch.  23;  11. 

STIRPES,  I'Ki;.  155. 

SUICIDE.     See  Evidence. 

SUNDAY,  will  made  on.     Bennett  v.  Brooks,  9  Allen,  118. 

TF,  A  I;IN(  ',         Srr    I ;  I. VOCATION. 

TESTAMENTARY,  whai  instruments  are, 

See  Will. 


502  INDEX. 

TESTAMENTARY  INCAPACITY. 

meaning,  3. 

degree  of  intelligence  required,  12-15. 

cases,  25-27,  38-40. 
general  discussion,  12-24. 
effect  if  testator  blind,  14. 

case,  27-28. 
effect  if  testator  deaf,  14. 

cases,  30-34. 
effect  if  testator  dumb,  14. 

cases,  30-34. 
effect  of  old  age,  14. 

case,  29-30. 
effect  of  weakness,  14. 

case,  29. 
See  also  Infancy,  Coverture,  Alienage,  Crime,  Mental  Unsoundness. 

testator's  declarations  as  evidence,  see  Declarations. 
references  to  text-books,  93. 

UNDUE  INFLUENCE. 

meaning,  4. 
general  principles,  95. 
cases,  99-121. 

defined,  95. 

what  is  and  is  not, 
cases,  99-121. 

influence  of  wife,  99. 

feeble  testator,  99. 

persuasion,  101-102. 

gratitude,  affection, 
case,  103-107. 
subjection  to  spiritualistic  medium,  24. 
fiduciary  relations,  96-97. 
confidential  relations,  96-97. 
suspicious  circumstances, 

case,  100-101. 
testator's  declarations  concerning,  see  Declarations. 

VOID,  part  of  will, 

See  Will. 


INDEX.  503 

'WIFE. 

early  right  in  husband's  personal  property,  1. 
See  Coverture;  Feme  Covert. 

TYTLL. 

definition,  384 

is  ambulatory,  meaning,  309. 

history  of,  1,  5. 

scope  of  testamentary  power,  1. 

of  realty,  power  to  make  before  the  Conquest,  5. 

no  power  after  Conquest  till  when,  5. 

early  restrictions,  1. 

of  land,  in  writing,  by  Statute  of  Frauds,  1. 

meaning  of  term,  2. 

used  in  two  senses,  2. 

every  one  may  make,  2. 

certain  exceptions,  2. 

exceptions  generally  only  apparent,  3. 
subdivision  of  the  subject,  3. 
form  of  the  instrument,  382-397. 

materials  on  which  written,  382. 

presumption  raised  by  unusual  materials,  383. 

will  may  be  ou  several  sheets,  383,  note  1. 

how  fastened,  383,  note  1. 

when  found  fastened, 

presumption  by  whom,  383,  note  1. 

when  wi'iting  obscure,  result,  383,  note  5. 

the  language  employed,  383. 
translation,  383. 

any  phraseology  and  form,  if  intent,  etc.,  384 

test  whether  will  or  not,  384. 
effect  of  statutes,  385. 
various  informal  wills  illustrated,  385-381". 

merely  appointing  executor,  385,  note  1. 

in  form  of  letter,  385,  386. 

in  form  of  assignment,  385. 
case.  :'>'.>( >  395. 

in  form  of  deed  of  gift,  386. 

in  same  instrumenl  with  power  of  attorney,  385. 
ease,  396  398. 
or  with  contract,  3K5,  387. 

mere  wish,  385,  386. 


504  INDEX. 

WILL— contin  tied. 

mere  direction  to  pay  on  death,  386. 

where  headed  "  Not  a  will,"  387. 

if  whether  will  doubtful,  evidence  admitted,  385,  note  9. 

in  English,  foreign  testator, 

case,  387-389. 
informal  will, 
case,  390. 
whether  will  or  deed — test, 
case,  390-395. 
conditional, 

cases,  398-408. 
whether,  or  absolute, 
cases,  398-408. 
two,  of  same  date,  inconsistent,  result,  310,  note  1. 
wills  conditional  in  part,  437. 
joint  wills,  421-423. 
simultaneous  wills,  423-424. 
double  wills,  424. 
reciprocal  wills,  424. 
alternative  wills,  425. 
duplicate  wills,  425. 

revocation  of  one,  effect,  425. 
one  not  found,  presumption,  425. 
parts  of  will,  how  attached,  425. 
nuncupative  wills,  (see  that  heading). 

not  necessary  for  will  to  name  an  executor.     Brady  v.  McCros- 
son,  5  Redf.  (N.  Y.)  431. 

WITNESSES. 

concerning  sanity, 

1 — subscribing,  91-93. 

who  are  "  credible,"  1,  2,  291-293-308. 

what  they  may  state,  91-93. 

legatee  as,  297-299. 

testimony  against  interest,  297-299. 

wife  of  devisee,  299-303. 

wife  of  legatee,  304-306. 

member  and  pewholder  in  church  beneficiary,  306-308. 

infant  witness,  293-296. 

competency  of  minor  witness,  293-296. 


index.  505 


WITNESSES— continued. 
2— expert,  91-93. 
3— others,  91-93. 

See  Evidence  ;  Attestation  Clause. 

WORDS.     See  Construction  ;  Will  ;  Definitions. 

WRITING.     See  Will  ;  Execution. 


Whole  Number  of  Pages  530. 


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